The following facts were set forth in the pleadings:
James Halliday died intestate, and his widow, Ariadne, administered on his estate, and gave bond in the sum of $100,000, with Robert C. Bond, James Simmons, Joseph L. Simmons, John G. Purnell, George W. Gary, James Frazer, Redding J. Hawkins, Andrew Joyner and Michael Ferrell, her sureties. Afterwards the same Redding J. Hawkins and Mrs. Halliday intermarried. Hawkins and wife wasted the assets; and the *Page 219 defendant Hall, a creditor of the intestate, instituted an action on the administration bond against the obligors therein, and at May term of Halifax court, 1843, he obtained judgment, to be discharged by the payment of $6,649, with interest and costs of suit.
At that time some of the sureties had failed and others were considered in doubtful circumstances. In consequence thereof, the defendant Ferrell, on behalf of the defendant Joyner, as well as himself, applied to the plaintiff's attorney to allow them to sue out a writ of fieri facias and have it levied so as might seem to them most likely to make them safe, or to make each surety pay his fair proportion. Thereupon the attorney of Mr. Hall gave to Ferrell a memorandum in writing, (281) authorizing him to apply to the Clerk for the execution, and place it in the sheriff's hands with directions from whom to collect and what property to levy on, unless control should be taken by the plaintiff. He was also directed to consult Colonel Joyner, or only proceed to secure a lien by the execution until time before court to sell. Afterwards the defendants Joyner and Ferrell, understanding that Hawkins had two bonds to the amount of $6,000, which he refused to transfer to the sureties to the administration bond, thought it best to have a ca. sa. sued out on the judgment, with a view of compelling Hawkins to surrender those bonds for the indemnity of the sureties, or, at least, to insert them in his schedule, if he attempted to obtain a discharge as an insolvent debtor. Accordingly, they, Joyner and Ferrell, without the knowledge of Hall or his attorney, sued out a ca. sa. and delivered it to the sheriff with instructions to serve it on Hawkins alone, and the sheriff arrested Hawkins, who entered into bond, with sureties, for his appearance at August term, 1843, to take the benefit of the act for the relief of insolvent debtors, and thereupon he was discharged out of custody. Hawkins filed a schedule, but omitted to give due notice to the creditors, so that, if the creditors had moved the Court therefor, he would have been put into close prison.
The bill was filed 31 October, 1843, by Hawkins and wife and all her sureties, except Ferrell and Joyner, against those two persons and Mr. Hall, and it charges, "that at August term, 1843, an arrangement was entered into by Hall, or by Joyner and Ferrell, or one of them, for him, and with the assent of Hall's attorney in the suit, by which Hawkins was discharged from the ca. sa. without taking the oath of insolvency. This arrangement was made by the plaintiff Hawkins, in proper person and his attorney on one side, and with the attorney of Hall *Page 220 and Joyner on the other, the said Joyner seeming to have the control of the debt and threatening to oppose the discharge of Hawkins, unless he would come into the terms proposed by him. That pursuant to an agreement then made between those persons an entry was made on the minutes (282) of the court, "that the schedule filed by the said Hawkins is withdrawn by leave of the Court. And the said Hawkins being in open court surrenders himself in discharge of his sureties; and therefore he, Hawkins, went at large, as has been agreed on." Afterwards afieri facias was issued on the judgment by Mr. Hall, returnable to November term, which he was about serving; whereupon the present bill was filed upon the ground that Hawkins had been discharged from custody by the act and consent of the creditor, and that thereby the judgment was discharged both as to him and his sureties. The prayer is for a perpetual injunction.
The defendant Hall denies that he authorized any person to take out theca. sa. or to proceed on it, or in any way sanctioned it, or made any agreement for the discharge of Hawkins. He admits that, with the view of raising, as far as could be done, an equal sum from each surety, his attorney authorized Ferrell and Joyner (who were wealthy men and each well able to pay the whole debt) to take a fieri facias, but that was all. He says, that at August court he made known to the parties, that he was not satisfied that a ca. sa. had been taken out, and would in no manner adopt the same; and that his attorney expressly stated to the attorney of Hawkins that, as he had no agency in issuing the writ, he could allow nothing to be done, whereby it could be implied that he assented to the discharge of Hawkins, or have more stated on the record than that, according to the fact, the schedule was withdrawn by direct application to the Court. He says his attorney did not pray Hawkins into custody, because he had given him no instructions to that effect, and had refused to adopt the ca. sa.
The answer of Joyner states that at August court Hawkins' attorney mentioned to him that Hawkins was in an unfortunate situation, as he had not given notice and might be sent to prison, and suggested that he would surrender his two bonds for $6,000, or so dispose of them that his sureties should have the benefit of them, to which the defendant replied that he had no desire to see Hawkins put in prison, and was (283) willing that any proceeding might be had in court, which would relieve him from imprisonment, provided such proceeding would not discharge him and his sureties from the judgment. He denies that he agreed to the discharge of *Page 221 Hawkins upon any terms, nor did he claim to act upon any authority from Hall touching the execution, further than as such authority might be inferred from the attorney's instructions respecting a fieri facias, and says that for himself alone he expressed a willingness that Hawkins might not be imprisoned. But he denies that he came to any agreement for his discharge, or knew that he was not prayed in custody until some days afterwards. Ferrell denies that he knew of any agreement for the discharge of Hawkins, or of any of the proceedings at August court, until he heard of them after the court ended; expecting Joyner to attend to the interest of both of them.
Both Ferrell and Joyner admit that, subsequently, Hawkins did surrender the bonds for $6,000 for the benefit of the sureties. They also state that a suit was instituted by the only child of the intestate Haliday against Hawkins and wife for her share of the personal estate, viz, two-thirds thereof; and that the sureties attended to the same. And that, in order to have the benefit of the said judgment in taking the accounts of the administration in the suit of the daughter, as well as because Mr. Hall had met with difficulties and embarrassments in collecting his debt, owing to his wish to serve them, and the said Ferrell having taken out the ca. sa. they, the defendants Joyner and Ferrell did satisfy or secure to Mr. Hall the said debt and took an assignment of the judgment to a third person for their benefit, on 2 November, 1843. They state that subsequently, upon the taking of the accounts in the daughter's suit, the amount of the said judgment was credited to the administrator, and thereby enured to the benefit of the parties. Upon the coming in of the answers, the defendants moved to dissolve the injunction which had been granted on the bill; and the Court allowed the motion with costs; and also entered a decree on the injunction bond against the plaintiffs and their sureties in the bond, for the debt and costs at law, and the costs in equity; from (284) which his Honor allowed the plaintiffs to appeal to this Court. There is no doubt of the rule of law that a capias ad satisfaciendum executed is a satisfaction of the debt by force and act of law, unless in a few excepted cases. Foster v. Jackson, Hob., 25. If the debtor escape, or die in prison, or be discharged by act of law, as by an insolvent act, the debt is not discharged; but an action may be brought on the *Page 222 judgment or process of execution issue thereon. So while the debtor's body is in execution, the creditor may doubtless proceed against other persons liable for the same debt or the same judgment or otherwise. But if the debtor obtain his liberty by the act or consent of the creditor, the debt is satisfied in law, and the creditor can no longer proceed against that person or any other for the same debt. Bryan v. Simonton, 8 N.C. 51.
It might, however, be questioned, whether that is a species of satisfaction, which equity would enforce; not being an actual satisfaction by judgment, but one stricti juris and therefore to be enforced at law. Still less would equity be inclined to grant relief upon this ground against the express agreement of the party himself, who was discharged, and where no injury has accrued to other persons bound for the money, but rather the contrary, in this case, as all the sureties got the benefit of the bonds for $6,000, and also the credit in the administration account for Hall's judgment, which now belongs to the defendants Joyner and Ferrell, or to a trustee for them. Therefore, admitting Hall to have adopted the ca. sa. by not having it set aside, and admitting Joyner to have made an agreement for the discharge of Hawkins in the manner represented in the bill, and that Hall assented thereto through Joyner or his own attorney, we should hesitate to take cognizance of the (285) case here and whether it would not be our duty to leave the parties, who claim the advantage of the rule of law, to get it at law if they could.
But the Court is of opinion that this is not a case, in which the rule of law applies; for the discharge out of custody was by act of the debtor himself, by permission of the law, and not by act of the creditor. The bill is not filed upon any rights of the sureties to be relieved on the score of dealings between the creditor and the principal debtor, to the prejudice of the sureties. But the bill is founded exclusively upon the position, that in law Hawkins' discharge satisfied the judgment as to himself; consequently, as to the sureties also. Now, we think Hawkins is not discharged of the debt by what was done here. The act, Rev. Stat. c. 58, sec. 58, says that upon the debtor, taken upon a ca. sa., tendering to the sheriff a bond as prescribed in the act, it shall be the duty of the sheriff to release him from custody. The discharge, then, from actual custody or imprisonment in fact, is the act of the law, or of the debtor himself under authority of law — consequently the creditor is still at liberty to pursue his remedy for his debt against any other person. It is true, the debtor, to obtain his liberation, is required to enter into bond with sureties, somewhat in the nature *Page 223 of bail, for his appearance at court and abiding by the judgment of the Court. But there is nothing in the act which compels the creditor to pursue his remedy upon the bond taken by the sheriff. If the debtor should not appear or comply in other respects with the law, the plaintiff may, on motion, have judgment on the bond. But that must be only cumulative, for as the creditor has done nothing to destroy the security of his original judgment (which indeed may be against others), he is certainly at liberty to waive a judgment on the bond and keep that he first had, or perhaps insist on both. That being so, we can not conceive why, if the debtor should appear, the creditor should be obliged to pray him into custody again as in execution. It seems to us very much like the case of principal and bail. The latter may surrender the former after judgment against him as well as before, either to the sheriff in vacation or to the Court. If the surrender be to the sheriff, he must necessarily accept the principal in (286) discharge of the bail, and consequently he must detain him, as he has no authority from the creditor or the law to discharge him. But if the surrender be made to the Court in term time, then notice to the plaintiff is required, that he may pray the debtor into custody, and, without such prayer, the Court does not commit the debtor as in execution. Consequently he goes at large. But he does not go at large as having satisfied the debt by the release of his body by the creditor. For, although the creditor declined having him placed under actual imprisonment, he is at liberty afterwards to take his property or his body in execution. The provisions of this act are much the same. It gives authority to the sureties to surrender the principal, either to the sheriff or in open court. Upon his surrender to the sheriff, either by himself or his sureties, no doubt he must take him and keep him as upon the execution still in his hands. But upon his appearance or surrender in court, as in the case of bail, we see no reason for compelling the creditor again to take him into custody, as between themselves. It may be that the debtor's bail in the original action is discharged by the debtor's body having once been in execution or by his appearance in court in discharge of his sureties, both the last and first. But that is a different question from one, whether the judgment against the debtor himself is satisfied or extinguished merely by the creditor's declining to have him replaced into actual custody. There seems to be nothing in the reason of the thing why it should be so. For the idea at the common law is, that the creditor consents to an enlargement from actual imprisonment. Hence on the surrender in court by bail after *Page 224 judgment, the custody being only that of the law and ideal, and not actual under the dominion of the officer of the law, the creditor allowing the debtor to go off, without taking him, is no discharge of the debt. So, it seems, it must be under this act. It is true, the act says, that if the debtor shall fail to answer on oath or to show that he has given notice, he "shall be deemed in custody of the sheriff." But that does not mean that he is so without notice to the sheriff, act (287) of the creditor, or order of the Court. It is clear the sheriff is not to take notice of the debtor's being in court and having failed in the performance of the matters required of him. The Court is to judge of that, and thereupon make an order. Therefore the sentence goes on, after the words, "shall be deemed in custody of the sheriff," to add, "and the Court shall adjudge that he be imprisoned." But that is not an ex officio duty of the Court, for such acts are never enjoined in courts, since in controversies inter partes, courts do not proceed but upon the motion of one of the parties. Therefore, in such a case, although the debtor may not have given the notice for ten days, as required to enable him to take the oath of insolvency, the Court should yet require the debtor or his sureties to give the creditor notice of the fact of surrender or appearance, to enable the creditor to move for a commitment under the act. Then as the creditor may move for the debtor's imprisonment, so it follows that he is at liberty not to do so. By not doing so, he does the debtor no harm. He does not release him from imprisonment; but he only declines subjecting him to it. Indeed he could, not by his own act merely, place the debtor into custody, but could only procure an order for it. It might be refused by the Court, perhaps; thought that is not probable. But if the Court did order it, it would be a new imprisonment on that order, as in execution, and not under the execution on which the arrest was originally made. For, perhaps, that may have been returned, or may have been served by the sheriff of a different county. Our opinion, therefore, is that the judgment obtained by Mr. Hall is still in force.
It was, however, said for the applicants, that at all events the injunction should have been continued as to the aliquot parts of Joyner and Ferrell, as two of the sureties, inasmuch as they are now the owners of the judgment, in the view of this Court, according to their answer; and so we were inclined at first to think. For such would be the rule as between the sureties themselves; since, although some of them, who are plaintiffs, are said to be failing, yet the sureties, who are (288) defendants, have a right now to consider them all solvent, they *Page 225 being in fact made so, as to these parties and as to this suit, by all of them joining in this suit and in the bond with sureties given for the injunction. Still Joyner and Ferrell, as two of the sureties, ought to pay their several shares, taking all the sureties to be solvent, and the principal insolvent, and, therefore, it struck us, that as to two-ninths parts, the injunction should have been continued; for although Mr. Hall does not admit in his answer that he had assigned the judgment to a trustee for his co-defendants, and it was not absolutely necessary that he should have said anything of it, inasmuch as it is not stated in the bill, and indeed could not be, for it occurred since the bill was filed; yet the fact can hardly be doubted and might have been brought out from Mr. Hall himself by a supplemental charge; and in such case we would not be disposed to allow the money to be raised out of some of the sureties and their sureties for the benefit of Joyner and Ferrell, which they ought to pay themselves.
But in thus regarding the subject, we overlooked the important fact, that the sureties who are plaintiffs, have joined themselves in this case with Hawkins and his wife, who are the principal debtors, and are therefore bound to pay the whole debt to Hall or his assignee, without any contribution from Joyner and Ferrell. The injunction was properly dissolvedin toto as to them as principals; and upon that dissolution, the other sureties, and the sureties for the injunction would all be alike liable on the injunction bond. In other words, all the original sureties and the new sureties to the injunction bond have by that instrument undertaken to answer for Hawkins and wife as well as for themselves, in this suit, and thereby to guarantee that they are solvent for the purpose of paying the judgment at law, if the injunction should be dissolved. Therefore, the whole decree was proper and should be affirmed with costs.
Cited: Daniel v. Joyner, post, 518; Ferrall v. Brickell, 27 N.C. 70;Freeman v. Sisk, 30 N.C. 214; S. v. Simpson, 46 N.C. 81. *Page 226
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