
    
      ABAT vs: WHITMAN:
    
    Appeal from the court of the first district
    The use of a common law on"“a proCess does not necessarily Englishprac-tictr1
   Porter, J.

delivered the opinion of the . ,T1, , .... court J. he only question m this cause is, whether a debtor who has been arrested on a n ⅜ writ of capias ad satisfaciendumt and dis* charged out of custody by the consent of the plaintiff, is not discharged of the debt, and whether this discharge does not operate in favour of those who were bound jointly and " ' severally with him.

By the laws in force in Louisiana antece* dent to the change of government, no such consequence followed the discharge of a debt- or from imprisonment. By the common law of Englahd it did. No statute of the state, or the former territory of Orleans,has repealed in express terms the rules previously in force. If, therefore, our former law is repealed, it must be from the use of the words capias ad satis-faciendum, in the act of the legislative council.

The repeal of laws is never presumed; and if the new and old laws can stand together, they should be so construed. It would be go* ingfar, to hold that the special enactment of a remedy which previously existed, should introduce the consequénces that attended that remedy in another system of jurisprudence. In this respect there is a meterial difference between this case and that construction which should be given to our laws introducing/ury trial, and the writ of habeas corpus; for they being unknown to our jurisprudence, the understanding of them was ex necessitate, to be sought somewhere else. The use of common ° law terms is easily accounted for, in the desire of the legislature to use those words which ° would convey in the roost clear and concise manner, to persons acquainted with the English language alone, the remedies defined. And tho’ the terms capias ad satis~ faciendum is not English, yet it is well known that the countries where the common law prevails, its meaning is as well understood as any word of their vernacular tongue which is used in law proceedings. So early as the year 1813, this court said that common law terms ought to be considered rather as a translation of the names formerly used than as emanating from the English jurisprudence. That their adoption as words can by no rule of law be considered as having introduced the English practice. 3 Mart. 185.

Seghers for the plaintiff—Eustis for the defendant.

It is therefore ordered, adjudged, and decreed, that the judgment of the district court be annulled, avoided, and reversed ; that the cause be remanded, to be proceeded in according to law; and that the appellee pay the costs of the appeal.  