
    John A. Nowell vs. Pelatiah R. Waitt.
    Middlesex.
    January 9. — 12, 1877.
    Colt & Ames, JJ., absent.
    Where a debtor has been taken and committed on execution and discharged by consent of the creditor, the same execution cannot be levied upon his estate.
    Writ of entry to recover a parcel of land in Melrose. Plea, nul disseisin. The case was submitted to the Superior Court, and to this court on appeal on an agreed statement of facts, in substance as follows:
    On February 4, 1874, the demandant recovered judgment in an action against the tenant, and on February 18,1874, execution issued upon the judgment. On February 21, 1874, the tenant was arrested upon the execution and committed to jail. On February 25, 1874, he went before a magistrate, and gave notice of his desire to take the poor debtor’s oath, and the magistrate issued the proper notice to the demandant and appointed February 28, 1874, for a hearing. On that day the parties all appeared, and the hearing was postponed until April 24, 1874. Meanwhile, on March 4, 1874, by agreement of all parties, the recognizance was discharged, all future proceedings upon the examination were discontinued, and the demandant consented that the tenant should be discharged from arrest. On March 5, 1874, an officer, by virtue of the same execution, seized the land in controversy. It was appraised, and duly set off by metes and bounds to the demandant, and seisin and possession delivered to him by the officer.
    In the Superior Court, Putnam, J., ordered judgment for the demandant; and the tenant appealed.
    
      W. P. Harding f A. V. Lynde, for the demandant.
    
      B. H. Perry, for the tenant.
   Gray, C. J.

The debtor having been taken and committed on execution, and having been discharged by consent of the creditor, it would seem that the judgment must be deemed satisfied, and it is clear that the same execution could not afterwards be lawfully levied upon his estate. Coburn v. Palmer, 10 Cush. 273. Kennedy v. Duncklee, 1 Gray, 65. Doane v. Bartlett, 4 Allen, 74. Gen. Sts. c. 124, § 22.

Judgment for the tenant.  