Masters against Edwards

*Masters against Edwards. If a defendant be discharged for want of being duly charged in execution, he can never be taken on a ca. sa. issued ón the judgment in the suit on which he was in custody. The defendant had been surrendered in exoneration of his bail, final judgment obtained against him, and aftei three months, he was, on regular notice to the plaintiff, superseded, for want of being charged in execution in due time.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, he said, 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 Biggs, contra. The English courts proceed on ■his maxim, “ once supersedeable, and ever supersedeable.” This we have departed from, and overruled, in Brantingaam'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, any 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 on the original judgment, he is excluded from showing 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 Brantingham's .Case we certainly did depart from the English practice. "We there allowed, on a rule to show cause, the being charged in execu[*517] tian 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 election 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; that 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. Motion granted, without costs. See Manhattan Co. v. Smith ante, p. 67,