
    Supreme Court of Errors and Appeals. Nashville.
    1813.
    FRANCIS HODGE v. THOMAS DILLON.
    v >• Appeal.
    A statute giving a new remedy does not take away one existing before.'
    If the motion to dismiss a certiorari be not made at the proper.term, the appellee tacitly admits that the petition contains sufficient cause, in form and substance, to justify the removal, and that the cause is regularly removed. [Acc. Chappell v. Jones; 8 Hum. 107; ■ Nance v. Hicks, 1 Head, 621.]
    Hodge, the appellant, recovered a judgment against the appel-lee, in the Davidson County Court, upon which several fieri facias issued, and on the 16th day of January, 1810, a capias ad satisfaciendum was also issued, upon which, on the 8th day of February following, the appellee was committed to prison.
    In this situation he remained until April, 1810, when, on motion of the .appellee to the County Court then in session, the last-mentioned process was quashed, and the appellee released from prison. This motion was made and sustained on the ground that since the Statute of November, 1809, no capias ad satisfaciendum could issue.
    The cause was then, on the application of the appellant, removed to the Circuit Court by a certiorari; and at the September term, 1812, the motion to set aside the order of the County Court quashing the ca. sa. was overruled and the certiorari dismissed. From this decision Hodge appealed to this Court.
    
      Dickinson, for the appellant,
    contended that the Statute of 1809, which authorized afieri facias to issue, did not prohibit the party from resorting to a capias ad satisfaciendum as a means of enforcing the payment of his debt if he deemed it necessary. It says nothing about the latter process, either directly or indirectly; and besides, from a literal construction, it would seem to apply only to cases where the judgment had been stayed under the Suspension Law, which is not the case here. But, at all events, the statute is affirmative, and will not, therefore, exclude the power of resorting to any process to which the party before would have been entitled. 4 Bac. Ab. 641.
    
      Hayes, for the appellee,
    urged that the whole provisions of the Statute of 1809 evidently showed that the remedy by ca. sa. was intended to be discontinued. It would be highly unjust, and, at all events, contrary to the indisputable meaning of the Legislature, to permit a party to sue out a ca. sa. until, at least, it should appear that no property of the debtor could be found. In this case several fieri facias have issued and been returned; and it does not appear by any of them that the appellee was insolvent, or that his property could not be found.
    It does not appear from the record upon what ground the certiorari was dismissed. It may not have been dismissed because the order of the County Court was esteemed legal, but because of some irregularity. I do not therefore conceive that the point relied upon by Mr. Dickinson, for the want of its clearly appearing in the record, can be properly brought' before this Court.
   White, J.

delivered the following opinion of the Court: —

In this case the plaintiff had recovered a judgment in the Davidson County Court. After the return of several writs of fieri facias, he, in the year 1810, sued out a capias ad satisfaciendum,, upon which the defendant was arrested, committed to prison, and gave bond to keep within the prison bounds. At the term to which the capias ad satisfaciendum was returnable, the defendant moved the County Court to quash the execution, which they did. The plaintiff removed the question to the Circuit Court, which affirmed the judgment of the County Court, and dismissed the certiorari upon the motion of the defendant. From this decision the cause has been removed into this Court. And now two questions are made: First, it is said this Court cannot tell but that the Circuit Court did right in dismissing the certiorari; it could only have been regularly issued upon petition, which petition must not only show that the plaintiff was injured by the decision of the County Court, but also a gpod reason why the party did not appeal. That the petition is not in this Court, they must therefore presume no good reason for not appealing was assigned. The plaintiff’s counsel has given a correct and sufficient answer to this argument when he states that if a defendant, in a certiorari, does not, at the return term thereof, move to dismiss, an application of that kind comes too late at any subsequent term. According to the settled practice, he is understood to have tacitly admitted that the petition contained sufficient matter to justify the removal, and that the cause is regularly removed. In this case the record shows that this motion to dismiss was made, not at the return term, but at a succeeding one, and even after the main question was decided by the Circuit Court. The second question is, ought the capias ad satisfaciendum to have been quashed ? The solution of this question depends on the construction of the act of Assembly relating to stays on executions, passed 23d of November, 1809. Before the passage of this Act, the law left it to the option of the plaintiff either to use the capias ad satisfaciendum or fieri facias to compel satisfaction of his judgment. No expressions are found in this Act which satisfy this Court that the Legislature intended to deny the plaintiff the use of the capias ad satisfaciendum. The Act simply authorizes the plaintiff to take out “an execution, which shall be levied on the personal estate only,” &c. There is no express repealing clause in the Act; every word in it may have as complete operation without denying the plaintiff a capias ad satisfaciendum as with it. This Act has been penned without much attention to technical terms. Its main design was to indulge debtors for a limited time, upon such conditions as would leave the creditor secure in his debt at the' lapse of the period prescribed. If a capias ad satisfaciendum was taken out, although the words of the Act would not compel the sheriff to receive security and stay the collection, still it is conceived that the spirit and meaning of the Act would, if we adopt a different construction, deny the capias ad satisfacien-dum altogether. No steps could be taken to obtain judgment against bail; and a fair opportunity is furnished debtors whose funds could not be reached by a fieri facias to set their creditors at defiance for a year, within which time, by squandering their money, leaving the State, or by some other means, the debt might be finally lost. The expressions of the Act must be very clear before this Court would believe the Legislature ever intended to make a provision that would lead to such evident injustice. The judgment of the Circuit Court must be reversed, and the order for quashing the capias ad satisfaciendum annulled.  