
    Joseph Winch v. — Wright, B. Wright, Joel Wright, Amos Thompson, and Jesse Hardy.
    Eeceiptors refused to deliver attached property when demanded by the sheriff on the execution. Thereupon, the debtor’s body was taken on the execution.
    Smith, C. J., was of opinion that taking the body did not discharge the receiptors from their liability to the officer.
    The cause having been compromised, no decision was given.
    This was an action of trover for two oxen, six cows, two three-year old steers, ten other young cattle, one horse, eighteen sheep, three hogs, twenty tons of E. hay; all valued at I--.
    Plea: the general issue.
    This cause was opened to the jury at last Term, when it appeared in evidence that Adams & Nazro sued one Nathaniel Emerson. Calvin Bragg was the deputy sheriff who served the writ. He attached certain personal property of Nathaniel Emerson. John Emerson, Isaiah Hardy, Nathan Hardy, and Reuben Heath gave a receipt for the property, promising to redeliver it to Bragg on demand.
    Adams & Nazro obtained judgment, Superior Court, October, 1805. The execution was delivered to Bragg, and, within •thirty days next after judgment, he demanded the goods attached, which were not delivered. Nov. 13,1805, he obtained a writ of attachment, in his own name, against the receiptors, John Emerson and others; and on Dec. 3,1805, Joseph Winch, the present plaintiff, attached the property mentioned in the present declaration, which was delivered to the present defendants, on their receipt, promising to redeliver the same to Winch, the plaintiff, on demand. The whole property was valued at $1,300.
    At April Term, 1806, C. C. P. Cheshire Co., judgment was rendered in the suit Bragg v. John Emerson et ais.; damages and costs $1,301.92.
    Before the commencement of the present action, viz. April 28,1806, Winch demanded, on Bragg’s execution, the property attached, and which had been delivered to defendants, and they refused to deliver it. Immediately upon this refusal, Bragg, who was present, directed Winch to take the bodies of John Emerson and others, the first receiptors, which he did; and they are now in prison by virtue of that commitment.
    [The defendants attempted to show that Winch discharged them from their engagement, by certain declarations which he made after the bodies of the first receiptors were taken on the execution.]
    As there was no dispute about the facts, except this parol discharge by Winch, it was agreed that the cause should be withdrawn from the jury, and considered as a case stated for the opinion of the Court.
    The parties compromised, and the action was dismissed at this Term.
   Smith, C. J.,

committed some views to writing, from which the following is an extract: —

The defence is, first, that the receipt became void on the bodies of the owners of the goods attached being taken in execution ; that this is a satisfaction of the debt due Bragg.

But this is not so : Bragg cannot take the bodies and estate of his debtors at the same time in execution; but Bragg may take the bodies, and Winch the estate. Winch became, on the attachment, answerable to Bragg for the goods attached; and this right of Bragg to look to Winch still exists, till actual valuable satisfaction made by John Emerson et ah., his debtors ; i. e., till payment of the debt. By taking the bodies, Bragg did not discharge the estate; he had no election ; he could not get the estate. If defendants had, on demand by Winch, produced the property, and Bragg had chosen to levy on the bodies, defendants would have been discharged. Nothing discharges defendants from their engagements except the production of the property on demand, or satisfaction of the judgment to respond which the attachment was made, i. e. payment. Perhaps, indeed, if no demand had been made, and no refusal on the part of defendants, and Bragg had chosen to take John Emerson et als., his debtors, in execution, it might have been considered as satisfaction; he might be considered as having made his election. But in this case he had no choice. He might say, “ I cannot get the estate; I will take the bodies, and pursue my remedy against Winch, who ought to have had the goods here on which I might have levied.” The body is not satisfaction like payment. If the persons now in execution were all to die, the debt would still live, it would survive them. The rule of law on which defendants rely extends no farther than this, that, on the same judgment, the body and property of the same person shall not be taken in execution.

In Lord v. Hobbes, Rockingham, September Term, 1804 [reported ante], which was debt on bond against defendant, and another who died since commencement of this suit, to abide the award of referees on submission of an action pending in court, there had been judgment (in the suit referred) on the report, and Hobbes had been committed in execution. It was held that this commitment did not discharge the bond ; though, if the judgment on the award had been paid, it would have been a good discharge.

The holder of a bill may sue the acceptor, drawer, and indorsers, at the same time; have execution against them all; may take the bodies of each in execution ; he may have ca. sa. against all but one, and fieri facias against that one ; nothing but actual payment will be a discharge. Chitty, 182, 183; Kyd, 116, 117. 
      
       This opinion is directly sustained by Twining v. Foot, 1850, 7 Cush. 512. See also note to Lord v. Hobbes, ante.
      
     