
    Morgan against Chester.
    Where a party recovered judgment against a sheriff’s deputy, for default in his official duty, and took his body in execution; it was held, that such party was not thereby barred of his remedy against the sheriff for the same default.
    This was an action against the defendant, as sheriff of the county of Hartford, for the default of Titus L. Bissell, one of his deputies, in relation to an execution in favour of the plaintiff against Serrel Bissell. The defendant pleaded in bar “That the plaintiff commenced his action against the said Titus L. Bissell, returnable to the county court of New-London county, in December, 1818, for the same matter, cause and thing as is contained in this action, and charging him with the same default in relation to the collection of the said execution, and comprising the whole grievance stated in this declaration; and therein recovered a lawful judgment for all the damages, which he had sustained thereby, viz. the sum of 114 dollars, 48 cents, with costs, and thereupon had a lawful writ of execution against the said Titus L. Bissell, and him, by virtue thereof, caused to be committed, prior to the commencement of this action, to the common gaol in Hartford; and said execution was returned, by the officer who levied the same, into the office of the clerk of the county court, satisfied, in the manner aforesaid.” To this plea there was a demurrer; and the case was reserved for the advice of all the Judges.
    New-London,
    July, 1822.
    
      Isham, in support of the demurrer,
    contended, 1. That if an imprisoned debtor is discharged, by law, or his own act; as if he swears out, or is declared an insolvent or bankrupt; it is a satisfaction as it respects his body only.
    2. That the commitment of the body of one person in execution, does not discharge any other person liable; nothing but actual payment being sufficient to discharge the latter. Macdonald v. Bovington, 4 Term Rep. 825. Nadin v. Battie & al. 5 East 147. Lyman v. Lyman & al. 11 Mass. Rep. 317.
    
      Goddard, contra,
    contended, That the creditor had a right to proceed either against the sheriff, or his deputy; but having made his election to proceed against one, and the cause of action having passed in rem judicatam, he is precluded from resorting to the other. He referred to, and commented on, Hayling v. Mullhall, 2 Bla. Rep. 1235. Bird v. Randall, 3 Burr. 1345. Kitchen & al. v. Campbell, 3 Wils. 304. Curtis v. Hurlburt, 2 Conn. Rep. 309.
   Hosmer, Ch. J.

It is unquestionably clear, that the plaintiff might have instituted a suit, either against the sheriff, or his deputy, for the default complained of; and that nothing short of satisfaction made by one, would annihilate the remedy against the other. Although the causes of action are not precisely identical; yet the sheriff is subjected equally with his deputy to a responsibility for his official neglect or misconduct. The relation between them, in point of effect, produces the same consequences, as that between joint and several promisers, or joint trespassers: the judgment recovered against one, does not extinguish the right of action against the rest; but this consequence merely results, from satisfaction made to the creditor. Sheldon v. Kibbe, 3 Conn. Rep. 214.

The taking out execution, and levying it on the body of Bissell, was no satisfaction of the plaintiff’s demand; but merely a gage for his debt, or a security for the original cause of action, until it should become productive. Blumfield's case, 5 Co. Rep. 87. Drake v. Mitchell & al. 3 East 251. 258. Macdonald v. Bovington, 4 Term Rep. 825. Sheehy v. Mandeville & al. 6 Cranch 265. The principle of transit in rem judicatam, has relation only to the positive cause of action, on which judgment is rendered; and operates as a change of remedy; but it is still merely a security, and effectuates no extinguishment of any collateral concurrent remedy, which the party may have. Drake v. Mitchell & al. Sheldon v. Kibbe, ubi sup. Notwithstanding the imprisonment of Bissell, until payment or a discharge of the execution, the cause of action against the sheriff, exists unimpaired; and his liability to suit is the same, as if no action had been instituted.

The other Judges were of the same opinion.

Plea insufficient.  