*77The opinion of the court was delivered by
Tuck, J.The counsel for the appellee insists, that this case should be affirmed, because appeals were not severally taken to the rulings of the court sustaining the demurrers to the third, fourth and fifth pleas, and that, therefore, the record does not present any “point or question” for the consideration of this court. We cannot distinguish this case from that of Thompson vs. The State, use of Harris, 4 Gill, 163. That record shews that there was a demurrer and an issue in fact, both of which were decided for the plaintiff, (as here,) and that the judgment and appeal were entered in the same manner. No case has been referred to in which a different mode of making the entries has been observed, except State vs. Crain, and Milburn vs. State, decided at this term. But there is a plain distinction between the cases. The party who failed on the demurrer, succeeded on the trial of the issues in fact, and obtained the final judgment. The other side appealed on exceptions taken at the trial, and this court, on that appeal, could not consider the questions presented on the demurrer, from which there was no appeals. If the demurrer had been ruled the other way, the appeal from the final judgment would have opened the record, not only upon the exceptions, but also upon the issues in law. Anderson vs. Chutcher, 11 G. J., 450. 7 G. & J., 109.
The judgment of the court upon the demurrer to the third plea presents the question, “whether a party taken under a ca. sa., can be discharged from arrest, with his own consent and that of the plaintiff, without releasing the debt?” What effect the matter of the plea would have had if relied upon as a defence to the action, according to the laws then in force in the county of Alexandria, D. C., where the judgment was obtained, we are not called upon to decide, as these laws have not been properly brought to the notice of the court. Gardner vs. Lewis, 7 Gill. The counsel for the appellant, however, contends, that the decision of these questions must be governed by the common law alone; and that the case of Harden vs. Campbell, 4 Gill, 29, is an authority for the re*78versal of the judgment on the second plea. The defendant in that cause had relied on three pleas, all of which were overruled by the court below. The first claimed his discharge, on the ground that he had been arrested under a previous ca. sa., so that the only question upon that plea was, whether the mere arrest operated to release the judgment? and the Court of Appeals, by affirming the judgment below, decided, that it was attended by no such consequence. But the pourt, upon the demurrers to the other pleas, held, that the arrest of the defendant and his discharge from the custody of the marshal, with the consent of the plaintiff, and without his own concurrence, deprived the plaintiff of his right to another ca. sa. If the mere arrest is no bar to other process on the judgment, it would seem to be a harsh construction of the law, and against the policy of our legislation on this subject, which has sought to mitigate the severity of the execution by ca. sa., to decide that the party arrested can offer no terms to his creditor, however leniently disposed, which he can accept without releasing the debt. But this case is different in a material fact from that in 4th Gill. The party there was discharged without his own concurrence. Here there was an agreement between plaintiff and defendant for that purpose. It appears by the act of 1789, ch. 42, that doubts on this question had been entertained, and for settling the law that act provides, that a plaintiff may elect, with the consent of the defendant, not to call the ca. sa. on which he may be arrested, and may afterwards proceed, by a new execution or other process, in the same manner as if the party had not been arrested on the former writ of execution. If it appeared by this record, that the ca. sa. had been returned and entered, “not called by consent,” there could be no doubt on the question. The act does not specify how the assent shall be evidenced. The plea shews, that the appellant was discharged from custody, by consent of parties, on payment of part of the debt, which, we think, was a sufficient election and agreement by the plaintiff and defendant, not to call the *79ca. sa., and entitled the plaintiff to other process for the recovery of the residue.
We can discover no difference in principle between the defence made by the fourth plea, and that stated in the case of Somervell vs. Marbury, 7 G. &. J., 275. There the principal debtor had been taken under a capias ad respondendum, returned cepi, and at the appearance term the case was stricken off by the plaintiff, on payment of the interest then due on the debt. The court held, that the discontinuance did not exonerate the surety upon his liability on the bond. The appellant’s counsel contend, that it was the duty of the plaintiff to call the case and default the sheriff, if he did not produce the defendant, Wheeler; and that this was a right held by the creditor against the debtor, to which his sureties were entitled, and which they have lost by the act of the plaintiff. A surety may acquire all the rights of the creditor against the principal debtor, but it is upon the assumption, that the creditor has been, or is to be, fully paid. Creger vs. Brengle, 5 H. & J., 234. Union Bank vs. Edwards, 1 G. & J., 346. It was competent for Lawson to have paid this debt, and proceeded against his principal at any time before or after that action was dismissed. 2 G. & J., 230. 6 G. & J., 243. There being no question raised on the issues to the first and second pleas, and the appeal as to the demurrer to the fifth plea having been abandoned, we have confined our attention to the ruling of the court upon the demurrers to the third and fourth pleas.
Judgment affirmed,