Cooper v. Bigalow — 1 Cow. 56

Majority

p. 56

Cooper against Bigalow and Searls. Bigalow against Cooper and Henry.

Headnote

A cct. sa. ex-ccutcd IS 9, satisfaction of the debt, except m certain cases provided ^°r So judgment, up-defendant is in execution, will not be set off er judgment in ins favour.

CooPer had judgment against Bigalow Searls, for $124,68, whereon the defendants were in prison upon a ca. s(li Bigalow had a verdict for six cents against Cooper-&■ ” ° i Henry, for an assault and battery, on which the plaintiff was to full costs, the cause having been brought here by Habeas Corpus. Both causes were in this Court. Cooper had assigned one half of his judgment to Henry.

Wilkes,

moved to set off so much of the judgment in the first cause, against the verdict, and the costs to be taxed in (jle second, as should extinguish the latter judgment.

Foote,

granted the set off to" be admissible within the authority of Simpson v. Hart, ( 14 John. 63 ,) notwithstanding

p. 57

íhe parties in the two suits were different; but he objected, that by the arrest and imprisonment of Bigalow Searls, on the ca. sa. who were not yet discharged, the judgment in the first suit was, in the eye of the law, satisfied.

Wilkes,

said that a ca. sa. was not in itself a satisfaction. It is no satisfaction so as to bar the plaintiff from taking out execution against other persons liable to the same debt or damages. (Tidd, 958.) So if the defendant die in prison, (1 R. L. 504, Sess. 36, ch. 50, s. 12,) or his body be discharged by the insolvent act. In these cases, new executions may issue. A ca. sa. is merely a means to coerce satisfaction.

The bodies of the defendants, Bigalow Searls, being in execution, this is, in judgment of law, a satisfaction of the debt, We find this principle perfectly well settled, so much so, that a commission of bankruptcy cannot issue, upon the proof of a debt for which the bankrupt is in execution. (Bu rnaby's case, Str. 653.) It is no answer to say that the plaintiff may hereafter be entitled to a new execution, by the death of the defendants. At common law, this could not be done. (Foster v. Jackson, Hob. 52.)^[1] But the statute makes it an exception. And the case mentioned of a discharge under the insolvent act, is also by statute. We, therefore, deny the motion.

Motion denied.

(a) (a) In this case, (p. 59,) the Court hold “ that a capias ad satisfaciendum, as against the party, is not only an execution, but a full satisfaction, by force and act, and j udgment of law.” In Horn v. Horn, (Ambl. 79,) Ld. Hardwicke says, “ Where there is an equitable demand, and the party is taken in execution on a decree, this Court (Chancery) will issue all its process against his lands and effects; and the body being detained is not, in this Court, a satisfaction ; the reason is, because he is detained for the contempt. Hut at laui, the detaining the body is a satisfaction, and you cannot afterwards take the goods. And so note the difference between common law, and equity