tion thereof so long as the imprisonment continues, and suspends for the time being all other remedies of the creditor against the debtor." 16 Am. & Eng. Enc. Law (2d Ed.), p. 49.

In 4 Comyn's Digest of the Laws of England, p. 241, it is stated under the heading "When execution may be after a former execution:"

"So, by the st. 21 Jac. 24. If a man dies in execution, it may afterwards be sued of his lands or goods. "So, before that statute: For the body was not a satisfaction, but a pledge only for the debt, R. 5 Co. 87. R. cont. Cro. El. 850. 2 Cro. 136, 143. R. cont. per 3 J. Hob. 60. Mo. 858. 1 Rol. 903. 1. 40.

"So, since that statute, shall it be without question. "So, if one of the defendants escapes, the plaintiff may afterwards sue execution against the other, though he has a remedy against the sheriff. R. 5 Co. 86 b. Cro. El. 555, 573. Cont. Mo. 459. R. acc. 2 Cro. 532. R. Cro. Car. 75. Vide Escape (E).

"So, if the conusor upon a statute of recognizance escapes, the conusee shall have execution against his lands and goods. R. 5 Co. 86 b. 87 b."

Blumfield's Case, 3 Coke, 174, is one of the early English authorities on the question. It is there said, in part:

"So, if the conusor be taken, and dies in execution, the conusee shall have execution of his goods and lands. And it was adjudged Pasch, 24 Eliz. in the common pleas between Jones and Williams, that where two men were condemned in debt, and one was taken and died in execution, yet the taking of the other was lawful. And then it was resolved by the whole court, that if the defendant in debt dies in execution the plaintiff may have a new execution by elegit, or fieri facias, for divers reasons.

"1. Because the plaintiff shall not be prejudiced, nor the defendant benefited by the act and wrong of the defendant, in nonpayment of his debt, when no default is in the plaintiff, he having pursued the due and ordinary course of law.

"2. The execution of the body is no satisfaction (as appears in 4 H. 7, 8, & 33 H. 6 (f) 47. Hillary's Case adjudged but a gage for the debt; as where a man has returned irreplevisable awarded, as it is said in 33 H. 6, 46, and therefore after his death he shall resort to a new execution. So that his body is taken to the intent that he shall satisfy and when the defendant pays the money, he shall be discharged out of prison.

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"3. The death of the defendant is the act of God, which shall not turn to the prejudice of the plaintiff, as it is said that in Trewinyard's Case, 38 H. 8, Dy. 60, the plaintiff shall not be prejudiced of his execution by act of law, which doth not wrong to anyone.

"4. It would be mischievous to the plaintiff to lose his debt without any default in him, and no mischief if a new execution should be done, for nothing would be liable to his new execution, but the lands and goods of the defendant, which in law and all equity ought to be subject to the payment of his debts."

In Nadin v. Battie & Wardle, 5 East, 147, the defendants were arrested and imprisoned on a ca. sa. Wardle was subsequently discharged under an insolvent debtors' act. Battie then moved for his discharge on the ground that his co-defendant had been released. The court said:

"The discharge cannot be said to have been with plaintiff's assent, because he did not choose to detain the party in prison at his own expense. Nor can the law, which works detriment to no man, in consequence of having directed the discharge of one defendant, so far implicate the plaintiff's consent, against the fact, as to operate as a discharge of the other."

Blackstone, in treating of the writ, recognizes the right of the plaintiff to have execution against the debtor's goods and chattels if he is discharged without his consent as by operation of law:

"But, by statute, 32 Geo. II., chap. 28, if a defendant, charged in execution for any debt not exceeding 100£ will surrender all his effects to his creditors

(except his apparel, bedding, and tools of his trade, not amounting in the whole to the value of 10£) and will make oath of his punctual compliance with the statute, the prisoner may be discharged, unless the creditor insists on detaining him; in which case he shall allow him 2s. 4d. per week, to be paid on the first day of every week, and on failure of regular payment the prisoner shall be discharged. Yet the creditor may at any future time have execution against the lands and goods of such defendant, though never more against his person." 2 Cooley's Blackstone (4th Ed.), p. 416.

See, also, 11 Viner's Abridgement, 28; Hillary's Case (1460), Y. B. Hen. VI. 47; Thompson v. Parish (1859), 5 C. B. (N. S.) 685; Linacre v. Rhode (1589), 2 Leonard, 96.

Sharpe v. Speckenagle, 3 Serg. & R. (Pa.) 463, is an early American case and involves the liability of a surety for a debtor who was imprisoned and subsequently discharged under the insolvent laws. The court said:

"It is not pretended, that the insolvent act discharged Oellers from the debt; it only discharged him from imprisonment. But the counsel for the defendant contends, that the arrest of Oellers on the capias ad satisfaciendum was, in itself, a satisfaction of the debt, and therefore it amounted to a discharge of the recognizance. That the arrest on a capias ad satisfaciendum is, in itself, a satisfaction of the debt, is a position not to be maintained, unless the plaintiff consented to the discharge; then indeed the debt is gone."

The Federal Supreme Court considered the question in the case of Tayloe v. Thomson, 5 Pet. 358. In disposing of contentions similar to those made in the instant case, it was said:

"If the defendant escape, or is discharged by operation of law, the judgment retains its lien, and may be enforced on his property. The creditor may retake

him, or sue the sheriff for the escape. A judgment against him does not amount to a satisfaction of the original debt, but it retains its lien until the plaintiff has done or consented to some act, which amounts in law to payment; as the discharge of defendant from custody, or, in some cases, a levy on personal property. But we know of no rule of law which deprives a plaintiff in a judgment of one remedy by the pursuit of another, or of all which the law gives him. The doctrine of election, contended for by the plaintiff in error (if it exists in any case of a creditor, unless under the statutes of bankruptcy), has never been applied to a case of a defendant in execution discharged under an insolvent act, by operation of law; a contrary principle is recognized, as well settled, in 5 East, 147.

"The greatest effect which the law gives to a commitment on a ca. sa. is a suspension of the other remedies on the judgment during its continuance; whenever it terminates without the consent of the creditor, the plaintiff is restored to them all as fully as if he had never made use of any."

It is said in Bannister v. Miller, 54 N. J. Eq. 126 (32 Atl. 1066), that:

"The defendants claim immunity from liability upon another ground. This matter of defense rests upon the following facts appearing in the case. It appears that the actions brought by the complainants, in which the judgments already mentioned were recovered, were commenced by capias ad respon dendum, and after the return of execution capias ad satisfaciendum were issued, upon which the sheriff took the bodies of the two Millers into custody. They were discharged from arrest, pursuant to the provisions of the insolvent debtors' act, having made and delivered an inventory of their property and given bond.

"The defendants insist that the complainants, having elected to proceed against the bodies of the Millers, are barred from proceeding in any other method, and that as to the complainants, their debts must be regarded as satisfied.

"There is no substance in this contention. The fact of a discharge under the insolvent act, by the express terms of section 28, is to relieve the debtor's person from liability to imprisonment for any provable debts against him at the time of the assignment made by him under the act, subject to this restriction only-the creditor is free to pursue his remedy against the discharged debtor or his property for any debt.'

The question came before the Kentucky court in Scott v. Colmesnil, 30 Ky. 417, and it was observed that:

"The imprisonment of Lee, which seems to have been intended as the gravamen, could not, of itself, and alone, bar the action. The mere caption and imprisonment of Lee, did not satisfy or release the judgment, and could not, therefore, have operated either as an actual or legal exoneration of himself, or of his co-obligor. Nothing but actual satisfaction, or a liberation of Lee by the plaintiffs, or a release to him in fact, or in law, could have exonerated the defendant from any joint liability which pre-existed. Cro. El. 573; 5 Co. 86; Gow on Part. 257, Mar. pa. If Lee had escaped, or had been discharged, the defendant's liability would not have been thereby destroyed, or impaired. Gro. El. 479, 555, 573; 5 Co. supra."

Trustees of the Poor v. Pratt, 10 Md. 5, is in accord with the foregoing authorities.

"It is contended, in the first place, by the appellee's counsel, that the arrest of the defendant in the judgment, under a ca. sa. issued thereon, prior to the marriage, either amounted, in law, to a satisfaction of the judgment, or waived or suspended the lien thereof, so as to allow the dower to attach upon the lands. The contrary principle has been adopted in this State, as well as by the Supreme Court of the United States, in the case of Tayloe v. Thomson, 5 Pet. 358. In that case the court says:

"The greatest effect, which the law gives to a commitment on a ca. sa., is a suspension of other remedies on the judgment during its continuance.'