
    Jos. F. Richbourgh v. J. C. West.
    
      Before Mr. Justice Martin, at Sumter — Spring Term, 1833.
    This was a rule against the sheriff, under the following state of facts. .
    A fi. fa. was lodged in this case, on the 13th 1827, and afterwards a ca. sa. issued bn which the fendant was arrested, Sept. 1828. Broughton became security for the bounds, which West immediately broke by escape ; and thereupon Broughton paid the plaintiff the debt, and took an assignment of the ex-Willis Ramsay, had a junior fi. fa. against the lodged 17 Oct. 1827, on which the shcr-has lately (in 1832) raised by the sale of the defendant’s property $245, which he is ready to apply to °f these executions, according to the decision of the Court on the point submitted: whether, the lien the plaintiff’s fi. fa has been lost. The presiding Judge held, that by taking the body of the defendant, execution, the lien of the plaintiff’s fi.fa. was lost, an<^ that Broughton the bail, was a mere volunteer, had no right to avoid prior liens, in order to indemnify himself for losses growing out of his misplaced confidence in the defendant: and he ordered the money to applied to Ramsay’s execution.
    
      tub arrest of he times in the defe!namt,f c.(end, and the Hen
    The and8cl¿.™dei fendanterwas.ta-"in mdSciped^f from the sale of pi-opertyTan'dit tiíefmoney 'Tamils j;0/» fnpraference to lions; andX that pald 1theWexecu-tion to the an assignment to himself, was entitled to aii the plaintiff's rights.
    A now Court, to reverse his decision, andto set aside this order, on the ground, that Broughton having taken an assignment from Rich-hourgh of the judgment against West, was entitled to rights, and that the arrest under Richbourgh’s ca. sa, only suspendecl the hen of his fi> fa, so ion# as the j r» -r . * • • j j J J ° defendant remained m custody. >
    Blandingíoi- the motion,
    cited and relied on Ma-zyck & Bell, v. Coiel (decided May, 1832) Potts and .Toorr. Richardson, 2 Bailey, 15:'P.L. 456; 5 Coke, 876, Cro. Car. 240.
    Mayrant contra,
    cited Cohen v. Greer, 4 M’C. 509, Mairs v. Smith 3 M’C. 59. 6 T. R. 505.
   Harper J.

The stat. 8 & 9 W. 3, c. 27 (Pub. L. App. No. 1, p. 16) enacts, that if a prisoner shall escape, “the creditor or creditors at whose suit the prisoner was charged in execution at the time of his escape, shall or may retake such prisoner by any new capias ad satisfaciendum, or sue forth any other kind of execution on the judgment, as if the body of such prisoner had never been taken in execution.” Justice Grimke, in a note, states this statute to have been made of force by the A. A. 1691, referred to in the list of Acts of the Assembly prefixed to his compilation as No. 55. If this statute be of force, and I must suppose it to be so, it is conclusive of Richbourgh’s right to issue a new ji. fa. after the escape of the defendant. That he must retain his priority over a creditor whose execution was lodged subsequently to the lodging of his first yi. fa., seems a necessary consequence of the doctrine which has been established in this State, upon the subject of the lien of dormant executions. The arrest of the defendant is prima facie a satisfaction, so long as he continues in custody; but when he has escaped, there is no longer a presumption of satisfaction ; it is as if the arrest had never been made ; and such are the terms of the statute. So a levy on a ji.fa. is a presumed satisfaction; but when the levy has been disposed of, and found not to produce a satisfaction, the right of the plaintiff, in respect of the balance due, remains as it was before the levy. No doubt, if the money had been made on the younger execution, and paid over while the defendant was in custody, this would have been good, and the money could not have been reclaimed. Such was the decision of this Court in the case of Mayzck and Bell v. Coiel, decided May, 1832.

state v. Guig-Binney, S30.

I have spoken as if Richbourgh were still the real plaintiff to the execution, and I think the case must 80 regarded. If any other person than Broughton, had procured an assignment of the judgment, he would have had all ftichbourgh’s rights; his title would have been a legal one under the Act of Assembly authorising the assignment of judgments. Then upon what ground, shall we deprive Broughton of the benefit of the assignment? When a surety pays off a debt, a Court of Equity will in mauy cases set up in his favour, any security which the creditor had against his principal. But Broughton needs no interference of equity; he has the legal title. He was not a defendant to the judgment, and was as capable as any other person to take an assignment. The money was not paid to discharge the judgment, but to procure an assignment, and I do not perceive upon what principle of law or equity, his rights in the judgment can be impaired, because he might subsequently have been compelled to pay a like amount on the bond for the prison bounds.

Foster v. Jackson, Hob. 52 !— Hillearies case, 33. H. B, 47.

Peacock v. Jef-fries, lTaun.425. Myers a. Moye, 3 Bailey, 9.

I>. L. 75.

3 il’C. 52. 4 M’C. 509.

The motion is granted.

JoiinsoN & O’Neall Js. concurred.'  