
    John A. Hamilton vs. William Bredeman.
    
      Arrest wider Ga. Sa. — Satisfaction—Insolvent Debtors ■ Act..
    
    B. gave to A. his promissory note and mortga'ged to him a slave to secure the payment. A. sued B. on the note, recovered judgment, and issued a ca. sa., under which B., having been arrested, applied for the benefit of the Insolvent Debtors’■ Act. -Pending B.’s application, the slave was sold as his property, under ajuniorjft. fa., and thereupon A, seized the slave under his mortgage. B. was afterwards discharged under the Insolvent Debtors’Act. Held, that Á.’s title to the slave, and right to seize him under the mortgage, was not" affected by the arrest" of B. under the ca. sal, and his subsequent discharge under the Insolvent Debtors’ Act.
    An arrest undgr a ca. sa., is no satisfactiou.of the debt. It only suspends all other legal remedies by process of execution.
    A discharge under the Insolvent Debtors’ Act deprives the creditor of all further legal remedies, but does not divest him of any right of property acquired before the discharge in virtue of the debt.
    BEFORE WARDLAW, J„ AT CHARLESTON, JANUARY TERM, 1860.
    Tbe report of bis Honor, tbe presiding Judge, is as follows:
    “This was an action of trover, to recover tbe value of slave, Polidore, and tbe following are tbe facts agreed on :
    “ It is admitted: First. That tbe defendant, under a mortgage of tbe slave Polidore, executed by Christopher Werner to him on tbe 9th day of October, 1857, and duty recorded in the office of tbe Secretary of State at Charleston, did, on tbe 21st day of July, 1859, through bis bailiff, seize tbe said slave Polidore, and that be was lodged in tbe jail of Charleston district.
    “Second. That tbe said mortgage of tbe slave Polidore was executed by Christopher Werner, to secure the payment of his promissory note,, dated on the 9th day of October, •1857, and payable to the order of the defendant, sixty days after date.
    “ Third. That the defendant, on the 24th day of December, 1857,. commenced suit against the said Christopher Werner, on the note to secure which the said mortgage was executed. That judgment was obtained at the June term of the Court of Common Pleas; for-the'year 1858. That an execution; of fieri facias was issued on the said judgment, and a -return £>f nulla bona made thereon. That an execution of capias ad satisfaciendum was issued on the said judgment on.-4th February, 1859 ; and on the 5th April, 1859, the said Christopher Werner was, under the.said ca sa., arrested ; and on the :
    . 1859, executed a prison bounds bond.
    “Fourth. That the said Christopher Werner, on the 12th day of May, 1859, filed a schedule in the office of the clerk of the Court of Common Pleas, and a petition for a dis1 charge under the Insolvent Debtors’ Act; and that when the said sláve Polidore was seized under the mortgage herein-before referred to, the application of the said Christopher Werner'for'a discharge was.pending. .- - '
    “ Fifth. That the plaintiff purchased the said slave Polidore for the price of at a sale made by the sheriff of Charleston district of the said slave, under a fi. fa., lodged on 5th day of February, 1858, in the ease of A. Vandohlen vs. Christopher Werner, before the 'seizure by the defendant under his mortgage; and that he held the sheriff’s bill of sale. . ■
    
      “ Sixth. That plaintiff has demanded said slave, and defendant has refused to deliver.
    
      “ Seventh. The fi.^fa. in the judgment of Bredeman vs. Werner, was lodged 19th June, 1858, and the ca. sa. 2d February, 1859. And the date of the sale to Hamilton by the sheriff, was the 6th June, 1859. ;
    
      
      “ Eigbtb. Werner, in October, 1859, toot tbe benefit of tbe Insolvent Debtors’ Act, under the plaintiff’s ca. sa.
    
    
      “ After hearing argument, I instructed tbe jury to find for tbe plaintiff.”
    Tbe defendant appealed, and now moved this«Court for a new trial, on tbe grounds :
    1. Because the defendant bad a right to his remedy under bis mortgage, notwithstanding be bad recovered a judgment on tbe note, to secure tbe payment of wbicb it bad been executed, and bad exhausted bis execution of ca. sa. thereon.
    2. Because tbe legal right and title to tbe slave Polidore was vested in tbe defendant as mortgagee, after tbe note of tbe mortgagor, C. Werner, became due; and be cannot be divested of that right and title by pursuing any other remedy wbicb be may have to recover his debt.
    
      Macbeth, Campbell, for appellant.
    Tbe arrest of Werner under tbe ca. sa., issued by tbe defendant, did not satisfy or extinguish bis claim. Mazyclc & Bell vs. Coil, 3 Eicb. 236 ; ■2 Tidd’s Practice, 980 ; Bichbourg vs. West, 1 Hill, 309 ; Pettus vs. Smith, 4 Eicb. Eq. 198; Sanders vs. Me Coll, 1 Strob. 22 ;, 3 Strob. 459. A mortgagee of personal property, after tbe breach of condition of .the obligation it. was intended to secure, becomes the owner in law of tbe same, and has tbe right to its possession. Johnson vs. Vernon, 1 Bail. 527; Spriggs vs. Camp, 2 Sp. 181; Youngblood vs. Keadle, 1 Strob. 121; Sutterwhitte vs. Kennedy, 3 Strob. 457.
    
      Porter, contra,
    cited 2 Tidd Pr. 952, Q57; Stover vs. Duren, 3 Strob. 451; Sneed ys. McCool, 12 How. 417; 15 How. 281; 1 Peters, 573; 1 Cowen, 56; Schroter vs. Crawford, 3 Eicb. 241; 5 Stat. 169; 12 Wend. 62.
   The opinion of the Court was delivered by

O’Neall, 0. J.

In this case the plaintiff must have right of property, or right of possession, to entitle him to recover. It seems to me he has neither. The title, when he bought, was in the mortgagee, and so was the right of possession, even against the mortgagor. Eor after condition broken, which was the case here, the mortgagee, the defendant, had the right of possession. But it has been contended here that the arrest under the cci. sa., and a discharge under the - Insolvent Debtors’- Act, was an extinguishment of the plaintiff’s debt. That may be so between the plaintiff in execution and his debtor, Werner, and yet it may not help the plaintiff in this case. (When I thus concede the plaintiff’s assumption, I do it merely to enable me more easily to meet his argument of right, thus arising as he supposes.) (It may be necessary hereafter to show, that the plaintiff’s assumption, even between a debtor and creditor, cannot in all respects be maintained.) The mortgagee, on the 21st July, 1859, seized the slave under his mortgage. At that time • Werner had filed his schedule containing the mortgaged slave, he having been previously arrested under a ca. sa. at the suit of this defendant; he was not discharged until October. The plaintiff bought on the 6th of June, 1859, under a junior execution. These facts. show that the plaintiff had, when he bought, no title ; for Bredeman was then the owner under his mortgage, and what has occurred since cannot be tacked to the plaintiff’s title, so as to give it effect. If he had an imperfect title from Werner, and he subsequently acquired a good one, then it might, even at law, by uniting that with the previous good one, make the right of the purchaser secure, as in Garey vs. Reeder, 4 McC.

I propose now to examine the question of satisfaction or extinguishment. In the case of Mazyck and Bell vs. Coil, 3 Rich. 236, the opinion was delivered by myself nearly twenty-seven years ago, with the concurrence of Johnson, J., and Martin, J., who was sitting for Harper, J., and overruled the doctrine that an arrest under a ca. sa. was satisfaction of a debt. It was'shown, I think satisfactorily, that during the arrest, it was a suspension of - any further remedy' by process of execution. In 1833 the same principle,was again affirmed by Johnson, J., with the concurrence of O’Neall and Harper, JJ., in the case of Schroter vs. Crawford, (in anote,) 3 Rich. 241, and from that time forward I regarded the matter settled. In this case it ought to be remarked, the defendant has not sought the aid of the process of the Court, he has simply taken his own property into possession, and there is therefore no question of satisfaction or extinguishment, which he has to meet before' he can have his remedy. ' It may be that if the party had brought the fact to the notice of the Court pending his arrest, he might have been discharged on showing that the slave thus taken into'possession was equal to' Bréd'eman’s debt, or if not, then to have had his debt reduced'by a deduction equal to the value of the slave.- But he did neither, and I do not see hów the pláintiff, Hamilton, is to be helped by the discharge of Werner under the Insolvent Débtór's’ Act. ■ Eor as is said in Hobart, at page 59, “ It is not actual satisfaction :' no not between the'partiés'accordingffo Hillairie's case, 33 H. 6, 47, for without doubt it is no satisfaction to common speech nor to a foreign plea.” The attempt to set it up by the plaintiff’ Hamilton, is the same as a foreign plea. But I put the whole doctrine of satisfaction* out of the question. The true notion between debtor and creditor is, after a discharge under the Insolvent Debtors’ Act, the legal remedies by process are gone, taken away; but there is nothing in the whole body of the'law which deprives a creditor of any right of property which, by virtue of his debt, he acquired before the discharge of his debtor.

1 ■ In this case, the acquisition of the slave is the same as if the-debtor and mortgagor, pending the arrest, had with his own hand put the slave in Bredeman’s, the mortgagee’s, possession. Who could have disputed his title thus acquired ? His subsequent 'discharge would not have touched it. How can it now ? The seizure and possession are the legal incidents of the mortgage executed 9th October, 1857, and legally recorded.

The case of Pettus vs. Smith, 4 Rich. Eq. 198, 202, is in affirmance of the principles for which I am contending. At 202, my brother Johnston says, “ An arrest” (under a ca. sa. of which he was speahing) is a merely conditional satisfaction. It is a satisfaction if it produces payment, or if the debtor be not released.”

Without pursuing the matter further, we. are satisfied that the plaintiff cannot recover ; and it is therefore best to end the litigation. A nonsuit is ordered.

Johnston and Wardlaw, JJ., concurred.

Motion granted.  