
    John Clark versus Simon S. Goodwin.
    It in no bar to an action of debt upon judgment, that the bail of the defendant in the former suit had surrendered him, and that he was in prison by virtue of such surrender, and liable to be taken upon "the execution, when the plaintiff commenced the second action, and arrested the defendant’s body.
    This was an action of debt on a judgment of the Circuit Court of Common Pleas for the county of Plymouth. The defendant pleads in bar, that, after the recovery of the judgment declared on, the plaintiff sued out his writ of execution thereon, which was returned unsatisfied ; whereupon he sued out a writ of scire facias against the defendant’s bail, who surrendered the defendant, who was thereupon, by order of court, duly committed to prison, there to remain for the space of thirty days, to be taken in execution if his creditor should think proper so to take him; that he continued in prison the said thirty days; that, while he was so a prisoner, the plaintiff wantonly and oppressively, and with a design to injure and oppress the defendant, and to subject him to great expense and damage, and further hold him in imprisonment, purchased the wril in the present action, and wantonly and oppressively arrested his body thereon ; when the plaintiff was entitled by law to sue out an execution upon the same judgment, and when the defendant was liable to be arrested, or to have his property taken upon such execution.
    The plaintiff replies, that he purchased his said writ *in the present suit for the purpose of securing and enforcing the payment of the money due to him on the judgment declared on, and traverses the defendant’s allegation, that he wantonly and oppressively, and with a design to injure and oppress the defendant, and to subject him to great expense and damage, purchased his said writ, and wantonly and oppressively arrested the defendant’s body thereon, &c.
    To this replication the defendant demurs, and the plaintiff joins in demurrer.
    
      Sampson for the plaintiff.
    
      The Solicitor-General for the defendant.
   Putnam, J.,

delivered the opinion of the Court. The creditor has an election to attach the property or the body of the debtor on mesne process, as well to secure his debt as to compel the debtor to answer; and by law the lien created by the attachment continues for thirty days after judgment. During that time the creditor may deliberate and determine what future process will be most for his advantage. If he sues an execution, he may direct it to be levied upon his body, if the debtor does not produce estate to the creditor’s acceptance. He is not obliged to take the body, or property which was attached on the original writ. If he should omit to do it, the only consequence would be, that he would lose the lien created by the attachment. Thus, if, within the thirty days, he should find it more for his benefit to take property than the body which was originally arrested, he may waive the one and take the other. So, if he attached property on mesne process, and should afterwards think the title not good, or that it would be better to compel the debtor to raise money from the property than to take it himself, he may waive his attachment, and use the execution as a copias ad satisfaciendum instead of a levari facias. These remarks tend to illustrate the position, that a creditor is not compellable to pursue, after judgment, the remedy indicated by his mesne process

In the case at bar, the defendant contends that the plain tiff, having a right to an execution, is obliged to * resort to it, and cannot maintain an action of debt within the thirty days after the judgment, because a new judgment would only give a right to an execution.

It has been decided that debt lies on judgment within or after the year. The case referred to by Chief Baron Comyns is in the 43 Ed. 3, 2, b, where it is said, “ If one recovers upon a statute merchant, and the statute gives an execution by copias, and also against the land, that notwithstanding he may have a writ of debt.” And there may be good reason for it. The interest of the money arising on the judgment can only be recovered by an action of debt upon the judgment. For the execution issues for the principal sum only; and property may be discovered which may be secured by the process of foreign attachment, which could not be touched by an execution against the debtor and the estate in his hands.

It may happen that the action of debt may be brought for the purpose of oppression only, and not for the better recovery of the money due. In such case, all the officers concerned would merit censure. But the case at bar is, by the demurrer of the defendant, confessed to be not of that iniquitous kind, but one brought to secure the debt, and not wantonly; and we do not perceive that there is any legal objection to it.

Replication adjudged good 
      
      
        Com. Dig., Debt, A, 2.
     