Masters v. Edwards

Masters v. Edwards. THE defendant had been surrendered in exoneration of his bail, final judgment obtained against him, and after three months, he was, on regular notice to the plaintiff, superseded, for want of being charged in execution in due time. Notwithstanding this, the plaintiff’s attorney sued out an execution against the body of the defendant, upon the judgment on which he had been in custody, and took him upon the ca, sa„ thus issued. Henry, on these facts, disclosed by affidavit, moved, that he should be discharged. This case is to be distinguished from that of Brantingham: in that, the court held the plaintiff entitled after notice of a rule for a supersedeas, to come in, charge in execution, and show that circumstance as a cause for refusing the application. Blandford v. Foote, Cowp. 72. recognizes the principle of the application, The court there decided, that a man released for want of being charged in execution might be taken on a ca. sa. in an action founded on the judgment, in the-original suit. It is to be inferred, therefore, that on an execution sued out in the original suit, he could not be taken. Benson and Riggs, contra. The English courts proceed on this maxim: “ once supersedeable, and “ ever supersedeable.” This we have departed from, and overruled in Brantingham''s case. Besides, the whole object of the motion is, to prevent us from doing that directly, which they allow we can accomplish circuitously ; for they say, we must proceed by action on the judgment, and have execution in the second suit. This is contrary to the settled principle, that circuity, and multiplicity of actions are abhorred in the law. Henry, in reply. The doctrine contended for by the plaintiff, would go. to shut out, from a defendant, an}- right of set-off. Suppose a man discharged; in the course of fair dealing, he, by services, or other means, pays a part of the. debt; if he is to be taken, oil the original judgment, he is excluded from show-Eng, perhaps, a full satisfaction, till he applies to the court for relief, and during that period is deprived of his liberty. [MAJORITY — Per Curiam.] Per Curiam. In Bran tingham’s case we certainly did depart from the English practice. W e there allowed, on a rule to show cause, the being charged in execution subsequent to notice of the application, to be shown as a reason for denying the supersedeas. The court proceeded there on the idea, that the statute gave the plaintiff a right of electing to have execution against the body, or the goods ; and that he was not obliged to manifest this election till called on. The present case is not of that description; the statute was only to prevent double executions. The plaintiff has elected to relinquish the person of his debtor, who, having been once actually superseded, must continue so, and the plaintiff shall never have liberty again to resort to his first judgment. Let the defendant, therefore, be discharged, but without costs.