#### * 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-*73¡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, (a)

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.]

(a)

*[Brown*vs. *Getchell & Al.,*11 *Mass. Rep.*11. — *Commonwealth*vs. *Drew,*4 *Mass. Rep.*391. — *Selw.*N. *P.*5th ed. 609, 610. — Ed.]