
    Bryan v.Simonton.
    From Wilkes.
    When a Defendant in execution once obtains his liberty by the assent os the Plaintiff, he canuot be ro-taken : and if he be one of sevoial Defendants m the same suit, the Plaintiff can neither re-take him nor take any of the other Defendants.
    
      And hence it is heldthat if there be judgment, against two, and the Plaintiff take one in execution, and discharge him, the bail of both is exonerated.
    This was a scire facias against Simonton, as bail for one Patterson, against whom, jointly with one Moody, the Plaintiff obtained judgment in debt, for four hundred and ninety dollars. The writ set forth the judgment and ca. sa; and that Moody was arrested thereupon, anti the return, that the other Defendant, Patterson, could not be found, and that the Defendant was bail for both of lito original Defendants. Pleas, 1 Nit/, lid record; 29 a special plea, that upon the ca. sa. against Moody and Paiterson? the former* was duly arrested, and in execution, until the Plaintiff discharged him from execution and set him at liberty. The Plaintiff took issue on the first plea, and demurred to the gec01((j, jn w¡jjc], the Defendant joined. It came on for argument before Mav.gmn, J. who sustained the demurrer, and gave judgment for the Plaintiff'; and the Defendant appealed.
    
      A. Jienderson and Wilson,
    submitted the case without argument.
   Tayiok, Chief-Justice,

delivered the opinion of the Court:

After stating the case, he said, the demurrer admits that Moody was taken in execution, and discharged by the Plaintiff; and the question presented is, whether that operates a discharge of the bail ?

The position is well established by authority,' that if a Plaintiff once take a Defendant in execution, and consent to his discharge, lie cannot afterwards sue out any execution on that judgment. There is but one case where a debtor in execution, who obtains his liberty, may after-wards be taken again for the same debt; and that is, when he has escaped ; and the reason of that is, because he is not legally out of custody. But where a prisoner obtains his discharge with tiie consent of the Plaintiff, he cannot be re-taken, if being considered that the Plaintiff has obtained a satisfaction in Jaw, by having bis debtor once in execution. This is uniformly the rule where there is but one Defendant; and it is equally well settled, that if the Plaintiff discharge one, of several Defendants, taken on a joint ca. sa, he cannot afterwards re-take such Defendant, or take any of the others. Where, indeed, the discharge- is without the consent of the Plaintiff, as by an insolvent law, a different rule prevails. The Defendant, in this case, can only be proceeded against, according. to the rules laid down, relative to bail; who is not chargeable until an execution be first returned, that the principal is not to be found in his proper County 5 nor can a sd. fa. issue until such execution shall have been so returned. Therefore, the judgment on the demurrer must be reversed : And the whole Court gave judgment for the Defendant. 
      
       4 Bur. Rep. 2482. 1 T. R. 557. 2 East. Rep. 244.
     
      
       7 T. R. 421.
     
      
       6 T. R. 525.
     
      
       5 East. Rep. 147.
     