
    MOSES CHEEVER vs. PHINEHAS MIRRICK AND NATHANIEL POND.
    All distinct allegations in pleadings, not denied nor answered, are admitted, íf a voluntary escape he permitted on execution by the sheriff, the creditor can still cause the debtor to he retaken on an alias execution; his property to be seized or an action of debt to be brought oa the judgment. But the sheriff has no such power; unless by consent of the creditor. That consent may be by parol and by the creditor’s attorney.
    If the attorney take a note of the sheriff for the amount of the execution, without agreeing, that it shall be payment and without giving a discharge of the execution, it is no bar to the prosecution of any of the above remedies in the creditor’s name for the sheriff’s benefit.
    This was trespass de bonis asportalis for certain farming ‘tools, stock and household furniture.
    At the trial here, October, 1820, Mirrick pleaded in justification, that he assisted Pond, who was a deputy sheriff, to levy on the articles an execution in the name of W. Fairbanks vs. Moses Cheever, the present pl&intiff; and that this was the trespass complained of.
    
    The plaintiff replied, that the execution so levied was an alias; that the first execution on the judgment had been delivered to Mirrick himself for service, who was also a deputy sheriff'; that Mirrick arrested and detained Cheever upon it for the space of four hours, then permitted him to go at large, and afterwards returned it unsatisfied; that, Mirrick thereupon sued out this alias, delivered it to Pond, and, as stated in the piea, aided him in the levy of it. The rejoinder alicg-ed, that the alias was sued out by Fairbanks and not by Mirrkk.
    
    On this fact issue was joined.
    
      Fund |Tacted in ju-nficatkm, that he, as a deputy sheriff, lev v i ti <- a'»owP IV on the articles mentioned in the writ. To :hi- it was if, tied in substance, as in the replication to ⅛) ri;h'“ V * ⅞ it i the additional averment, that Pond knew the 'Ka« was sued out by Mirrkk without the knowledge of F-i-i arks.
    
    T-i-3 i gio-ndcr merely alleged that the alias was sued out by Fairbanks ; and on this an issue was joined.
    It appeared in evidence, that Mirrick did arrest Cheever on the first execution, and on his agreeing to pay it within a specified time, or to return into custody, Mirrick permitted him to go at large; that Cheever performed neither, and the execution remaining at the return day unsettled, Fairbanks instituted a suit against Mirrick for his default; that judgment being recovered against Mirrick, the attorney of Fairbanks took a note from Mirrkk for the amount thereof; and, at Mirrick's request, permitted him to renew the execution against Cheever in order that, he might collect from Cheever sufficient to satisfy the note ; that Mirrick accordingly obtained this alias, delivered it to Pond for service, and with the proceeds paid the note giwn to Fairbanks’ attorney.
    The jury were directed, that if they believed the testimony concerning the permission to Mirrick to sue out an alias on Fairbanks' judgment, the defendants were entitled to a verdict.
    A verdict was found for them, subject to further consideration on the correctness of the charge.
    
      J. C. Chamberlain, counsel for the plaintiff.
    
      JJmpkam. for the defendants.
   WooutuiiY, J.

delivered the opinion of the court.

Al' doe pleadings in this case terminate in an issue on the ■> ngfo point, whether the alias execution was or was not sued by * iurianks, the creditor.

(1) 14 John, Rep. 465.

(2) Just. Inst. 612-Wheat 526.

For the voluntary escape by Cheever, the knowledge of it by Pond and all the other material allegations, not being denied, are admitted. Quinonnegat, fatetur. Loft. Rep. Apx. 85 maxim. — 2 Bl. Rep. 1025.

The finding of that issue is highly material; because after a voluntary escape, the sheriff, without permission from the creditor, has no remedy against the debtor upon the former judgment or execution. 1 N. H. Rep. 369, Langdon vs. Hathaway.—2 John. C. 3.—4 Mass. Rep. 395.—10 ditto 59.—8 East 171.—2 D. & E. 176. His only redress is on a new promise from the debtor, running to himself. 13 John. 366.—14 ditto 379, 467.—15 ditto 256. But it is equally well settled, that the creditor, after such escape, is not without remedy against the debtor, either by debt on the judgment or a renewal of his execution. 9 Mass. Rep. 136.—10 ditto 59.—15 John. 256.—2 John. C. 2, 15.—Tidd 957.—Cr. Ch. 75.— Cr. El. 555.—Cr. Ja, 532.—Hob. 60. This remedy can be assigned to the sheriff; and’if so assigned, whether by parol or otherwise, the sheriff may exercise it in a manner as ample as the creditor himself could. Every thing necessary to the assignment is a bare permission or license from the creditor, that the sheriff may pursue the remedy in his name. 2 John. C. 15, Lansing vs. Fleet.15 John. 259. Thompson vs. Lockwood.9 Mass. Rep. 133.

Even original writs and executions are seldom sued out by the plaintiffs in person ; and the only authority usual or necessary to those, who act for plaintiffs, in these cases, is either an assent or request on the part of the plaintiffs.

This assent or request, where the agent is equitably entitled to prosecute, has in some cases been presumed from the mere justice and propriety of it.(l) And under the civil law, a surety could, by subrogation, compel the creditor after an offer of payment to permit him to prosecute the principal >n the name of the creditor.(2) But at common law, there must be some evidence of actual assent or request on the part of the creditor; however distressing may be the condition of the sheriff, or however great dishonor may attach to the creditor, by a refusal.

(1) 3 Maui. & Selw, 96.

(2) 8 John. 266, Jackson vvs. Bartlett.

In this case, there was full consent and permission by the creditor’s attorney. This consent was given at the time of the execution of a note by the sheriff for his default and was intended to enable him to obtain that indemnity from the debtor, which every honest creditor would wish to secure to an unfortunate officer. Neither of the judgments appear at that time to have been actually discharged; and the receipt of the note was not itself payment without an express agreement to that effect. 1 N. H. Rep. 382, While vs. Crockery Ware Company.—Vide, also, 3 Maul. & Selw. 362.—3 East 169.—2 Barn. & Ald. 52.—15 John. 347.

The attorney of the creditor was still his agent; the consent given related to the collection of the demands entrusted to him, was not injurious to his principal, and was probably no more than the creditor himself would have given, if applied to. The alias, therefore, was sued out by the creditor, because it was done by the permission of his agent; and qui fácil per aliud, facit per se.

But it is further contended, that after a creditor has elected to prosecute the sheriff for his default, instead of the debt- or for the original debt, the debtor is exonerated. But we doubt, whether such a position could be maintained, even if the judgment against the sheriff was satisfied. For even then the debtor would have paid nothing : and the recovery against the sheriff is on a new and different cause of action. 9 Mass. Rep. 136.—Bul. N. P. 69.

The renewal of the execution in this case somewhat resembles the prosecution of a former claim in a creditor’s name for the benefit of a surety, who has paid or given new indemnity for the debt, without procuring an actual discharge or cancelling of it. 10 John. 524, 539.—1 ditto 137.—13 ditto 353.—2 John. C. 227.—8 Mass. Rep. 465. The note was neither given nor received with a view to discharge the judgment against the original debtor. There was no animus sol-vendi in respect to that,(1) nor did it as before shewn amount to a discharge of the sheriff; and it is well settled that the debtor cannot be exonerated till a satisfaction against one or the other.(2) In this case therefore, we are happy to find, that when officers,.-without fraud or culpable negligence, merely indulge their humanity on ungralt ful objects, substantial justice can be administered between them without any departure from legal principles.

Judgment on the verdict.  