The plaintiff recovered a judgment against Dabney Walker and Samuel Forkner, in which case the defendant became the special bail of each of those persons by reason that he was the sheriff who served the writ and failed to return a bail bond. The plaintiff sued out a capias adsatisfaciendum and placed it in the hands of the defendant, who returned it "Not executed on the defendant Dabney Walker, and the defendant Samuel Forkner not found." Thereupon the plaintiff commenced this suit by a scirefacias against Hampton as special bail of Forkner, and the defendant pleaded, among other things, that one of the debtors, Dabney Walker, was taken by the sheriff on the ca. sa. and was discharged by the plaintiff, and thereon issue was joined.
On the trial the defendant offered Thomas B. Wright as a witness, and he deposed that he, as the defendant's deputy, arrested Walker on the ca. sa. and very soon thereafter let him go at large in order that he might procure sureties in a bond for his appearance at the return of the writ to take the benefit of the act for the relief of insolvent debtors; that on the same day he informed the plaintiff of what had been done, and the plaintiff then instructed him not to take the bond, and told him that he did not wish the ca. sa. executed on Walker. He further (35) deposed that, at the return of the writ, he had Walker again in custody, and would have returned "Executed" as to him had not the plaintiff and his attorney then directed him to discharge Walker; whereupon he did so, and made the return as before set forth.
Upon that evidence the counsel for the plaintiff insisted that the escape of Walker was a voluntary one, and that it could not protect the defendant from his liability as the bail of Forkner, upon his return of nonest inventus as to him; and that the directions of the plaintiff given after such voluntary escape, that the writ should not be then executed upon Walker, or that Walker should be detained in custody on that writ after he had been retaken thereon by the sheriff, did not amount to a satisfaction of the debt nor exonerate the defendant from liability as the bail of Forkner. But the court held, and instructed the jury, that, notwithstanding the previous escape of Walker, whether it was negligent *Page 38 or voluntary, the directions of the creditor, after the sheriff had taken the debtor again into custody, that he should not be detained, and the discharge of the debtor by the sheriff in obedience to those directions, worked a satisfaction of the debt, and was a bar to this action against the bail of the other joint debtor, Forkner. There was, accordingly, a verdict and judgment for the defendant, and the plaintiff appealed. It is very true that if a creditor discharge one joint debtor from arrest on execution the debt is thereby satisfied, and he can neither proceed against that or any other debtor on the judgment, nor their bail. Bryan v. Simonton, 8 N.C. 51. But that, necessarily, supposes the debtor to be under a lawful arrest; for the creditor cannot be held to be satisfied of his debt because he will not persist in nor (36) sanction an illegal and false imprisonment. Now, in this case, several propositions are very clear which constitute the imprisonment of Walker one of that character. There is no doubt that letting Walker go at large after having first taken him was an escape; and, being by the express assent of the sheriff's deputy, Wright, it was a voluntary escape. Therefore, the sheriff could not retake him, and was liable to Walker's action for false imprisonment for so doing. Spencer v. Moore,19 N.C. 264; Atkinson v. Jameson, 5 Term, 25. It is true, the creditor may, if he chooses, have another capias ad satisfaciendum, or have debt on the judgment. Jones v. Pope, 1 Saund., 34, note 1. But certainly he is not bound thus to proceed, but may at once look to the sheriff on his liability for the escape, or look to any other security he may have; and his omission or refusal to retake the debtor who escaped, either on the same or another execution, cannot amount to discharging him from lawful arrest. If it did, it would discharge that debtor as well as the other. Then, inasmuch as the sheriff had no power of himself, and merely by force of the writ, to retake Walker, and inasmuch as the creditor was not obliged to do it, and might, as he did, direct the sheriff not to arrest him again, the conclusion must be that the creditor had a right, without affecting any other remedy for his debt, to declare to the sheriff, after the second and unlawful arrest of Walker by the sheriff of his own accord, that he was acting without the creditor's authority, and that he did not mean to legalize the imprisonment by giving to it his assent. Supposing, therefore, that the plaintiff, either upon the return of Walker into custody or after his being a second time taken by the sheriff, might have admitted him to be in execution, so as to make the sheriff liable for an escape subsequent thereto, yet, to have that effect, some act in recognition of such second imprisonment on the part of the *Page 39 creditor was indispensable to give it the force of a legal imprisonment as respected the rights of the creditor; for in an action for (37) a voluntary escape it is no answer that the sheriff retook the debtor before suit. His refusal, merely, to allow the sheriff in such a case the advantage of his authority as creditor cannot be construed into a turning and discharging the debtor out of custody by the creditor himself. Far from it, for the law forbade the sheriff to retake the debtor, and he was entitled to his discharge by law, without the creditor's saying or doing anything. The plaintiff, it appears, then, did no wrong to Walker, nor to the other joint debtor, Forkner, nor to the defendant as the bail of the latter. Nor would the defendant's liability as bail of Forkner (as to whom non est inventus was returned) be affected by any return the sheriff could have made, under the circumstances, as to Walker; for if he had returned Cepi corpus, and actually committed Walker to prison, still the plaintiff might demand the body of his other debtor and take judgment against his bail for the want of producing him. And if he had returned the voluntary escape of Walker, according to the truth of the case, there would be the same reason why the creditor might enforce the payment from Forkner or from the sheriff, who, while bail for Forkner, voluntarily let Walker at large. The plaintiff might, indeed, have sought his remedy by an action for the escape, but he is not confined to that; and if he had sued for the escape, it would have been just as good an answer to that action that the plaintiff might have raised his money out of Forkner or out of the defendant as his bail, as it is an answer to the present action against him, as bail of one debtor, that he was liable for the escape of the other debtor. The whole wrong in this case is on the side of the defendant, according to his own evidence, which distinguishes this case from those of Trice v. Turrentine,27 N.C. 236, and Waugh v. Hampton, ibid, 241, according to the grounds of decision stated in those cases. There the creditor ordered the sheriff originally not to take one of the debtors, and the majority of the Court thought he was bound to seek payment from all the debtors (38) before he could go on the bail of either. Here the creditor directed by his process all the debtors to be taken, as he was bound to do, and one of them was taken and turned loose by the sheriff of his own accord, and without the knowledge of the creditor. Certainly, the creditor is not bound to go against the debtor a second time before resorting to the other; for, if so, he would by successive voluntary escapes of one debtor be delayed indefinitely as against the other. Instead of the creditor ordering the sheriff not to take one of the debtors originally on the ca.sa. in this case, he only directed him not to take him a second time, after the sheriff had once let him go out of custody.
It is very clear that the plaintiff did not, as pleaded, discharge Walker from lawful imprisonment on his execution, and, therefore, that the *Page 40 verdict on that issue should have been for the plaintiff. And it is equally clear that the whole wrong in this case is on the side of the defendant, and that in justice and law he is chargeable to the plaintiff as the bail of Forkner.
PER CURIAM. Venire de novo.
Cited: Kelly v. Muse, 33 N.C. 187.