#### REDDING J. HAWKINS & AL. vs. EDWARD HALL & AL.

If a debtor, who has been arrested upon a ca. sa., obtain his liberty by the or consent of the creditor, the debt is satisfied in law, and the creditor can no longer proceed against that person or any other for the same debt.

But where the person arrested has given bond under the Insolvent Debtor’s Act, appears at court accordingly, is surrendered by his sureties, and is per. mitted afterwards to go at large, simply because no judgment of imprisonment is prayed against him, the debt is not discharged.

The case of Bryan v Simonton, 1 Hawks 51, cited and approved.

This was an appeal from an interlocutory order, made by his Honor Judge Pearson, at the Spring Term, 1844, of Halifax Court of Equity, dissolving the injunction which had been granted in this case.

The following facts were set forth in the pleadings :

James Halliday died intestate, and his widow, Ariadne, administered on his estate, and gave bond in the sum óf $100,000, with Robert C. Bond, James Simmons, Joseph L. Simmons, John G. Purnell, George W. Gary, James Frazer, Redding J. Hawkins, Andrew Joyner and Michael Ferrell, her sureties. Afterwards the same Reddin J. Hawkins and Mrs Halliday intermarried. Hawkins and wife wasted the assets; and the defendant, Hall, a creditor of the intestate,, instituted an action on the administration bond against the obligors therein, and at May Term of Halifax court, 1843, he obtained judgment, to be discharged by the payment of $6649, with interest and costs of suit.

At that time some of the sureties had failed and others were considered in doubtful circumstances. In consequence thereof, the defendant, Ferrell, on behalf of the defendant, Joyner, as well as himself, applied to the plaintiff’s attorney to allow them to sue out a writ of fieri facías and have it levied so as might seem to them most likely to make them safe, or to make each surety pay his fair proportion. There*281upon the attorney of Mr. Hall gave to Ferrell a memorandam in writing, authorising him to apply to the Clerk for the execution, and place it in the Sheriff’s hands with directions from whom to collect and what property to levy on, unless control should be taken by the plaintiff. He was also directed to consult Col. Joyner, or only proceed to secure a lien by the execution until time before Court to sell. Afterwards the defendants Joyner and Ferrell, understanding that Hawkins had two bonds to the amount of $6000, which he refused to transfer to the sureties to the administration bond, thought it best to have a ca. sa. sued out on the judgment, with the view of compelling Hawkins to surrender those bonds for the indemnity ofthe sureties, or, at least, to insert them in his schedule, if he attempted to obtain a discharge as an insolvent debtor. Accordingly, they, Joyner & Ferrell, without the knowledge of Hall, or hisattorny, sued out a ca. sa. and delivered it to the Sheriff with instructions to serve it on Hawkins alone, and the Sheriff arrested Hawkins, who^entered into bond, with sureties, for his appearance at August Term 1843, to take the benefit ofthe act for the reliefof insolvent debtors, and thereupon he was discharged out of custody. Hawkins filed a schedule, but omitted to give due notice to the creditors, so that, if the creditors had moved' the Court therefor, he would have been put into close prison*-

The bill was filed October 31, 1843, by Hawkins and wife- and all her sureties, except Ferrell and- Joyner, against those two persons and Mr. Hall, and it charges, “that at August term, 1843, an arrangement was entered into by Hall, or by Joyner and Ferrell or one of them for him, and with the assent of Hall’s attorney in the suit, by which Hawkins was discharged from the ca-. sa. without faking the oath of insolvency. This arrangement was made by the plaintiff" Hawkins, in proper person and his attorney on one side, and with the attorney of Hall and Joyner on the other, the-said Joyner seeming to have the control of the debt and threat, en-ing to oppose the discharge of Hawkins, unless he would come into the terms proposed by him. That pursuant toaa agreement then made between those persons an- entry was *282made on the minutes of the Court, that “the schedule filed by the said Hawkins is withdrawn by leave of the Court, And the said Hawkins being in open Court surrenders himself in discharge of his sureties; “ and therefore he, Hawkins, went at large, as has been agreed on.” After-wards a fieri facias was issued on the judgment by Mr. Hall returnable to November term, which he was about serving; whereupon the present bill was filed upon the ground, that Hawkins had been discharged from custody by the act and consent of the creditor, and that thereby the judgment was discharged both as to him and his sureties. The prayer is for a perpetual injunction.

The defendant Hall denies that he authorised any person to take out the ca. sa. or to proceed on it, or in any way sanctioned it, or made any agreement for the discharge of Hawkins. He admits that, with the view of raising, as far as could be done, an equal sum from each surety, his attorney authorised Ferrell and Joyner, (who were wealthy men and each well able to pay the whole debt) to take & fieri faias, but that was all: He says, that at August Court he made known to the parties, that he was not satisfied, that a ca. sa. had been taken out, and would in no manner adopt the same; and that his attorney expressly stated to the attorney of Hawkins, that as he had no agency in issuing the writ, he could allow nothing to be done, whereby it could be implied that he assented to the discharge of Hawkins, or have more stated on the record than that, according to the fact, the schedule was withdrawn by direct application to the Court. He says, his attorney did not pray Hawkins into custody, because he had given himno instructions to that effect, and had refused to adopt the ca. sa.

The answer of Joyner states, that at August Court Hawkins’ attorney mentioned to him, that Hawkins was in an unfortunate situation, as he had not given notice and might be sent to prison, and suggested that he would surrender his two'bonds’for $6000, or so dispose of them that his sureties should have the benefit of them, to which this defendant replied, that he had no desire to see Hawkins put in prison, *283and was willing that any proceeding might be had in Court,' which would relieve him from imprisonment, provided proceeding would not discharge him and his sureties from the judgment. He denies, that he agreed to the discharge of Hawkins upon any terms, nor did he claim to act upon any authority from Hall touching the execution, farther than as such authority might be inferred from the attorney’s instructions respecting & fieri facias, and says, that for himself alone he expressed a willingness that Hawkins might not be imprisoned. But he denies that he came to any a-, greement for his discharge or knew that he was not prayed, in custody until some days afterwards. Ferrell denies that he knew of any agreement for the discharge of Hawkins, or of any of the proceedings at August Court, until he heard of them after the Court ended; expecting Joyner to attend to the interest of both of them.

Both Ferrell and, Joyner admit, that subsequently Hawkins did surrender the bonds for $6,000¿for the benefit of the sureties. They also state, that a suit was instituted by the only child of the intestate Haliday against Hawkins and wife for her share of the personal estate, viz. two thirds thereof; and that the sureties attended to the same. And that, in order to have the benefit of the said judgment in taking the accounts of the administration in the suit of the daughter, as well as because Mr. Hall had met with difficulties and embarrasments in collecting his debt owing to his wish to serve them, and the said Ferrell having taken out the ca. sa. thgy, the defendants Joyner and Ferrell did satisfy or secure to Mr. Hall the said debt and took an assignment of the judgment to a third person for their benefit, on the 2d of November, 1843. They state that subsequently, upon the taking of the accounts in thefcdaughter’s suit, the amount of the said judgment was credited to the administrator, and thereby enured to the benefit of the parties. Upon the coming in of the answers, the defendants moved to dissolve the injunction which had been granted on the bill; and the Court allowed the motion with costs; and also entered a decree on the injunction bond against ^the plaintifis and their sureties *284at law, and the costs in allowed the plaintiffs to in the bond, for the debt and costs 'equity: From which his Honor appeal to this Court.

Iredell for the plaintiffs.

defendants. Badger & B. F. Moore for the

Ruffin, C. J.

There is no doubt of the rule of law, that a capias ad satisfaciendum executed is a satisfaction of the debt by force and act of law, unless in a few excepted cases. Foster v Jackon, Hob. 25. If the debtor escape, or die in. prison, or be discharged by act of law, as by an insolvent act, the debt is not discharged ; but an action may be brought.on the judgment or process of execution issue thereon. So while the debtor’s body is in execution, the creditor may doubtless proceed against other persons liable for the same debt or the same judgment or otherwise. But if the debtor obtain his liberty by the act or consent of the creditor* the debt is satisfied in law, and the creditor can no longer proceed against that person or any other for the same debt. Bryan v Simonton, 1 Hawks 51.

It might, however, be questioned, whether that is a species of satisfaction, which equity would enforce; not being an actual satisfaction by judgment, but one stricti juris and therefore to be inforced at law. Btill less would equity be inclined to grant relief upon this ground against the express agreement of the party himself, who was discharged, and where no injury has accrued to other persons bound for the money, but rather the contrary, in this case, as all the sureties got the benefit of the bonds for $6000, and also the credit in the administration account for Hall’s judgment, which now belongs to the defendants Joyner and Ferrell or to a trustee for them. Therefore, admitting Hall to have adopted the ca. sa. by not having it set aside, and admitting Joyner to have made an agreement for the discharge of Hawkins in the manner' represented in the bill, and that Hall assented thereto through Joyner or his own attorney, we should hesitate to take cognizance of the case here and whether it *285would not be our duty to'leave the parties, who claim the vantage of the rule of law, to get it at law if they could.

■ But the Court is of opinion, that this is not a case, in which the rule of law applies; for the discharge out of custody was by act of the debtor himself, by permission of the law, and not by act of the creditor. The bill is not filed upon any rights of the sureties to be relieved on the score of dealings between the creditor and the principal debtor, to the prejudice of the sureties. But the bill is founded exclusively upon the position, that inlaw Hawkins’discharge satisfied the judgment as to himself; consequently, as to the sureties also. Now, we think Hawkins is not discharged of the debt by what was done here. The act, Rev. Stat. c. 58, s. 8,.says that upon the debtor, taken upon a ca. sa. tendering to the Sheriff a bond as prescribed in the act, it shall be the duty of the Sheriff to release him from custody. The discharge, then, from actual custody or imprisonment in fact, is the act of the law, or of the debtor himself under authority of law — consequently the creditor is still at liberty to pursue his remedy for his debt against any other person. It is true, the debtor, to obtain his liberation, is required to enter into bond with sureties, somewhat in the nature of bail, for his appearance at Court and abiding by the judgment of the Court. But there is nothing in the act which compels the creditor to pursue his remedy upon the bond taken by the Sheriff. If the debtor should not appear or comply in other respects with the law," the plaintiff may, on motion, have judgment on the bond. But that must be only cumulative, for as the creditor has done nothing to destroy the security of his original judgment, (which indeed may be against others) he is certainly at liberty to waive a judgment on the bond and keep that he first had, or perhaps insist on both. That being so, we cannot conceive why, if the debtor should appear, the Creditor should be obliged to pray him into custody again as in execution. It seems to us very much like the case of principal and bail. The latter may surrender the former after judgment against him as well as before, either to the Sheriff in vacation or to the Court. If the surrender *286be to the Sheriff, he must necessarily accept the principal in discharge of the bail, and consequently he must detain him, as he has no authority from the creditor or the law todischarge him. But if the surrender be made to the Court in term time, then notice to the plaintiff is required, that he may pray the debtor into custody, and, without such prayer, the court does not commit the debtoras in execution. Consequently he goes at large. But he does not go at large as having satisfied the debt by the release of his body by the creditor. For although the creditor declined having him placed under actual imprisonment, he is at liberty afterwards to take his property or his body in execution. The provisions of this act are much the same. It gives authority to the sureties to surrender the principal either to the Sheriff or in open Court. Upon his surrender to the Sheriff, either by himself or his sureties, no doubt he must lake him and keep him as upon the execution still in his hands. But upon his appearance or surrender in Court, as in the case of bai!( we see no reason for compellin g the creditor again to take him into custody, as between themselves. It may? be that the debtor’s bail in the original action is discharged by the debtor’s body having once been in execution or by his appearance in Court in discharge ot his sureties, both the last and first. But that is a different question from one, whether the judgment against the debtor himself is satisfied or extinguished merely by the creditor’s declining to have him replaced into actual custody. There seems to be nothing in the reason of the thing why it should be so. For the idea at the common law is, that the creditor consents to an enlargement from actual imprisonment. Hence on the surrender in Court by bail after judgment, the custody being only that of the law and ideal, and not actual under the dominion of the officer of the law, the creditor allowing the debtor to go off, without taking him, is no discharge of the debt. So, it seems, it must be under this act. It is true, the act says, that if the debtor shall fail to answer on oath or to shew that he has given notice, he “shall be deemed in custody of the Sheriff.” But that does not mean that he is so without *287notice to the Sheriff, act of the creditor, or order of the Court. It is clear the Sheriff is not to take notice of the debtor’s being in Court and having failed in the performance of the matters required of him. The Court is to judge of that, and thereupon make an order. Therefore the sentence goes on, after the words “shall be deemed in custody of the Sheriff,” to add “and the Court shall adjudge that he be imprisoned.” But that is not an ex officio duty of the Court, for such acts are never enjoined in Courts, since in controversies inter parties, Courts do not proceed but upon the motion of one of the parties. Therefore, in such a case, although the debtor may not have given the notice for ten days, as required to enable him to take the oath ofinsolvency, the Court should yet require the debtor or his sureties to give the creditor notice of the fact of surrender or appearance, to enable the creditor to move for a commitment under the act. Then as the creditor may move for the debtor’s imprisonment, so it follows, that he is at liberty not to do so. By not doing so, he does the debtor no harm. He does not release him from imprisonment; but he only declines subjecting him to it. Indeed he could, not by his own act merely, place the debtor into custody, but could only procure an order lor it. It might be refused by the Court, perhaps; though that is not probable. But if the Court did older it, it wouldjbe a new imprisonment on that order, as in execution, and not under the execution on which the arrest was originally made. For, perhaps, that may have been returned, or may have been served by the Sheriff of a different county. Our opinion, therefore, is, that the judgmeut obtained by Mr. Hall is still in force.

It was, however, said for the appellants, that at all eventsthe injunction should have been continued as to the aliquot parts oí Joyner and Ferrell, as two of the sureties, in as .much as they are now the owners of the judgment, in the view of this Court, according to their answers; and so we were inclined at first to think. For such would be the rule as between the sureties themselves; since although some of them, who are plaintiffss, are said to be failing, yet the sure*288ties, who are defendants, have a right now to, consider them they being in fact made so, as to these parties and as to this suit, by all of them joining in this suit and in the bond with sureties given for the injunction. Still Joyner and Ferrell, as two of the sureties, ought to pay their several shares, taking all the sureties to be solvent, and the principal insolvent, and, therefore, it struck us, that as to two ninth parts, the injunction should have been continued; for although Mr. Hall does not admit in his answer, that he had assigned the judgment to a trustee for his co-defendants, and it was not absolutely necessary that he should have said any thing of it, in as much as it is not stated in the bill, and indeed could not be, for it occurred since the bill was filed; yet the fact can hardly be doubted and might have been brought out from Mr. Hall himself by a supplemental charge; and in such case we would not be disposed to allow the money to be raised out of some of the sureties and their sureties for the benefit of Joyner and Ferrell, which they ought to pay themselves.

But in thus regarding the subject, we overlooked the important fact, that the sureties who are plaintiffs, have joined themselves in this case with Hawkins and his wife, who are the principal debtors, and are therefore bound to pay the whole debt to Hall or his assignee, without any contribution from Joyner and Ferrell. The injunction was properly dissolved in tolo as to them as principals; and upon that dissolution, the other sureties, and the sureties for the injunction would all be alike liable on the injunction bond. In other words, all the original sureties and the new sureties to the injunction bond have by that intrument undertaken to answer for Hawkins and wife as well as for themselves, in this suit, and thereby to guarantee that they are solvent for the purposes of paying the judgment at law, if the injunction should'be dissolved. Therefore, the whole decree was proper and should be affirmed with costs.

Her Curiam, Ordered to be certified accordingly-