
    * Simeon Appleby versus Daniel Clark.
    An arrest of a debtor in execution, and a voluntary discharge of him by the officer, is no bar to an action upon the judgment.
    Debt upon a judgment of the Court of Common Pleas for this county, September term, 1807.
    The defendant pleaded, 1. Nul tiel record, on which issue was joined to the Court. — 2. In bar, that the plaintiff sued out his execution upon the said judgment, and delivered the same to one Joshua Trafton, a deputy sheriff of this county, by whom he was arrested and taken into custody in virtue of said execution; and the said deputy sheriff, there afterwards on the same day of the arrest, voluntarily permitted him to escape, and discharged him from said arrest.
    To this plea there was a general demurrer and joinder.
    
      Holmes, for the plaintiff,
    cited Salk. 271, Scott vs. Peacock.— Shower, 174. — 2 Roll. Abr. 307, Welby vs. Andrews.— 1 Danv. 634, pi. 5, S. C.
    
      Emery
    
    (who had the charge of Mr. King’s business at this term, Mr. K. being of counsel for the defendant, and also being a member of the House of Representatives in the Congress of the U. S., and now attending his public duty at the seat of government) said he had no particular instructions as to the support of this plea.
   Per Curiam.'

It has been long settled, that a voluntary escape of a party in execution leaves the sheriff committing the escape without remedy. The prisoner is not to be retaken by the same officer; and if he suffers in damages recovered against him by the creditor, the original debtor is not hablé to the officer, as he is in case of a negligent escape, in which he is a wrong-doer as to the officer.

But neither a negligent nor a voluntary escape, unless the cred-¡tor has himself consented to the discharge of his debtor, when arrested and a prisoner in execution, is an answer for him to the demand of the creditor upon the same judgment. As to him, the officer and prisoner are wrong-doers, as well in the case of a voluntary as of a negligent escape,

The second plea of the defendant is bad and insufficient, as it contains no averment of a consent by the creditor.

See 1 Show. 174. —2 D. & E. 126.

ADDITIONAL NOTE.

[In what cases the levy of an execution is no satisfaction of the judgment, see Green vs. Burke, 23 Wend. 490.

A levy upon chattels of a third person is no satisfaction, and scire facias still lies upon the judgment. — Flagg vs. Dryden, 7 Pick. 52. — And this without petition to the court. — Wilson vs. Green, 19 Pick. 433.

If a debtor be arrested on a ca. sa., and discharged by order of the creditor, or his agent, no other execution can issue upon the same judgment.— Windrum vs. Parker, 2 Leigh. 361. — But if a debtor in custody under a ca. sa. is permitted to escape, an other execution may issue. — Ibid. — See 2 Hayio. 110.

The return of satisfaction to a fi. fa. is conclusive against a scire facias upon the judgment, unless the return can be amended by leave of court. — Snead vs. Rhodes 2 Dev. & B. 386. —F. H.] 
      
      
        [Brown vs. Getchell & Al., 11 Mass. Rep. 11. — Commonwealth vs. Drew, 4 Mass. Rep. 391. — Selw. N. P. 5th ed. 609, 610. — Ed.]
     