
    JOHN H. JACKSON vs. HENRY G. HAMPTON.
    A Sheriff was bail for A. and B., against whom there was a joint action.— A ca. sa. issued upon the judgment against them. • B. was not to be found, but the ca. sa. was executed on A. and then the Sheriff voluntarily permitted him to escape, but afterwards re-took him. Held, that this recaption was unlawful, and that the assent of the plaintiff, after such recaption, that A. should not be held in custody, did not operate as a satisfaction of the judgment, nor did it deprive the plaintiff of his remedy against the Sheriff as the bail of B.
    The cases of Trice v. Turrentine, 5 Ired. 23S, and Waugh v. Iiampton, 5 Ired. 241, cited and approved.
    Appeal from the Superior Court of Law of Surry County, at the Fall Term,' 1844, his Honor Judge, Manly presiding.
    The plaintiff recovered a judgment against Dabney Walker and Samuel Forkner, in which case the defendant became the special bail of each of those persons, by reason that he was the Sheriff, who served the writ and failed to return a bail bond. The plaintiff sued out a capias ad satisfaciendum, and placed it in the hands of the defendant, who returned it “ not executed on the defendant Dabney Walker, and the defendant Samuel Forkner not found.” Thereupon, the plaintiff commenced this suit by a .scire facias against Hampton, as special bail of Forkner; and the defendant pleaded among other things, that one of the debtors, Dabney Walker, was taken by the Sheriff on the ca. sa. and was discharged by the plaintiff, and thereon issue was joined.
    On the trial, the defendant offered Thomas B. Wright as a witness, and he deposed, that he, as the defendant's deputy, arrested Walker on the ca. sa. and very soon thereafter let him go at large, in order that he might pro* cure sureties iu a bond for his appearance at the return of the writ, to take the benefit of the act for the relief of insolvent debtors : that, on the same day, he informed the plaintiff of what had been done, and the plaintiff then instructed him not to take the bond, and told him that he did not wish the ca. sa. .executed on Walker. He further deposed, that, at the return of the writ, he had Walker again in custody, and would have returned “ executed” as to him, had not the plaintiff and his attorney then directed him to discharge Walker, whereupon he did so and made the return as before set forth.
    Upon that evidence the counsel for the plaintiff insisted, that the escape of Walker was a voluntary one, and that' it could not protect the defendant from his liability, as the bail of Forkner, upon his return of non est inventus as to him ; and that the directions of the plaintiff given after such voluntary escape, that the writ should not be then executed upon Walker, or that Walker should be detained in custody on that writ, after he had been re-taken thereon by the Sheriff, did not amount to a satisfaction of the debt nor exonerate the defendant from liability as the bail of Forkner. But the Court held, and instructed the jury, that, notwithstanding the previous escape of Walker, whether it was negligent or voluntary, the directions of the creditor, after the Sheriff had taken the debtor again into custody, that he should not be detained, and the discharge of the debtor by the Sheriff in obedience to those directions, worked a satisfaction of the debt, and was a bar to this action against the bail of the other joint debt- or, Forkner. There was, accordingly, a verdict and judgment for the defendant, and the plaintiff appealed.
    
      Mo rehead, for the plaintiff.
    
      Boy den, for the defendant.
   Ruffes, C. J.

It is very true, that, if a creditor discharge one joint debtor from arrest on execution, the debt is thereby satisfied, and he can neither proceed against that or any other debtor on the judgment, nor their bail. Bryan v. Simonton, 1 Hawks 51. But that, necessarily, supposes the debtor to be under a lawful arrest; for the creditor cannot be held to be satisfied of his debt, because he will not persist in, nor sanction, an illegal and false imprisonment. Now in this case, several propositions are very clear, which constitute the imprisonment of Walker one of that character. There is no doubt, that letting, Walker go at large after having first taken him, was an escape ; and, being by the express assent of the Sheriff’s deputy, Wright, it was a voluntary escape. Therefore the Sheriff could not re-take him, and was liable to Walker’s action, for false imprisonment for so doing, Spencer v. Moore, 2 Dev. and Bat. 204. Atkinson v. Jameson, 5 T. R. 25. It is true, the creditor may, if he chooses, have another capias ad satisfaciendum, or have debt on the judgment, Jones v. Pope, l Saund. 34, note 1. But certainly he is not bound thus to proceed, but may at once look to the Sheriff on his liability for the escape, or look to any other security he may have ; and his omission or refusal to re-take the debtor, who escaped, either on the same or another execution, cannot amount to discharging: him from lawful arrest. If it did, it would discharge that debtor, as well as the other. Then, inasmuch as the Sheriff had no power of himself, and merely by force of the writ, to re-talte Walker, and inasmuch as the creditor was not obliged to do it, and might, as he did, direct the Sheriff not to arrest him again, the conclusion must be, that the creditor had a light, without affecting any other remedy for his1 debt, to declare to the' Sheriff, after the second and unlawful arrest of Walker by the Sheriff of his own accord, that he was acting without the creditor’s authority, and that be did not mean to legalise the imprisonment by giving to it his assent. Supposing, therefore, that the plaintiff, either upon the return of Walker into' custody, or after his being a second time taken by the Sheriff might have admitted him to be in execution, so as to make the Sheriff liable for an escape subsequent thereto, yet, to have that effect, some act in recognition of such second imprisonment on the part of the creditor was indispensable, to give it the force of a legal imprisonment, as respected the rights of the creditor. For in. an action for a voluntary escape, it is no answer, that the Sheriff re-took the debtor before suit. His refusal, merely, to allow the Sheriff in such a case the advantage of his authority, as creditor, cannot be construed into a turning and discharging the debtor out of custody by the creditor himself. Far from it; for the law forebade the Sheriff to retake the debtor, and he was entitled to his discharge by law, without the creditor’s saying or doing any thing. The plaintiff, it appears then, did no wrong to Walker, nor to the other joint debtor, Forkner, nor to the defendant, as the bail of the latter. Nor would the defendant’s liability, as bail of Forkner, (as to whom«o?¿ así inventus was returned,) be affected by any return the ¡¿sheriff’ could have made, under the circumstances, as to Walker. For if he had returned Cepi corpus, and actually committed Walker tó prison, still the plaintiff might demand the body of his other debtor, and take judgment against liis bail for the want of producing him. And if he had returned the voluntary escape of Walker, according to the truth of the case, there would be the same reason why the creditor might enforce the payment from Forkner or from the Sheriff, who, while bail for Forkner, voluntarily let Walker at large. The plaintiff might, indeed, have sought his remedy by an action for the escape, but he is not confined to that; and, if he had sued for the escape, it would have been just as good an answer to that action, that the plaintiff' might have raised his money out of Forkner or out of the defendant as his bail, as it is an answer 1o the present action against him as bail of one debtor, that he was liable for the escape of the other debtor. The whole, wrong in this case is on the side of the defendant, according to his own evidence ; which distinguishes this case from those of Trice v. Turrentine, 5 Ired. 236, and Waugh v. Hampton, 5 Ired. 241, according to the grounds of decision stated in those cases. There, the creditor ordered the Sheriff originally not to. take one of the debtors, and the majority of the Court thought he was bound to seek payment from all the debtors, before he could go on the bail of either. Here, the creditor directed by his process all the debtors to be taken, as he was bound to do, and one of them was taken and turned loose by the Sheriff of his own accord, and without the knowledge of the creditor. Certainly, the creditor is not bound to go against the debtor a second time, before resorting to the other; for, if so, he would by successive voluntary escapes of one debtor be delayed indefinitely as against the other. Instead of the creditor ordering the Sheriff not to take one of the debtors originally on the ca. sa. in this case he only directed him not to take him a second time, after the Sheriff had once let him go out of custody.

It is very clear, that the plaintiff did not, as pleaded, discharge Walker from lawful imprisonment on his execution ; and therefore, that the verdict on that issue should have been for the plaintiff. And it is equally clear, that the whole wrong in this case is on the side of the defendant, and that in justice and law he is chargeable to the plaintiff as the bail of Forkner.

Per Curiam. Judgment reversed and venire de novo.  