Morgan v. Chester

Where a party recovered judgment against a sheriff’s deputy, for default in his official duty, and took his body in execution; it was held, that such party was not thereby barred of his remedy against the sheriff for the same default.

This was an action against the defendant, as sheriff of the county of Hartford, for the default of Titus L. Bissell, one of his deputies, in relation to an execution in favour of the plaintiff against Serrel Bissell. The defendant pleaded in bar “That the plaintiff commenced his action against the said Titus L. Bissell, returnable to the county court of New-London county, in December, 1818, for the same matter, cause and thing as is contained in this action, and charging him with the same default in relation to the collection of the said execution, and comprising the whole grievance stated in this declaration; and therein recovered a lawful judgment for all the damages, which he had sustained thereby, viz. the sum of 114 dollars, 48 cents, with costs, and thereupon had a lawful writ of execution against the said Titus L. Bissell, and him, by virtue thereof, caused to be committed, prior to the commencement of this action, to the common gaol in Hartford; and said execution was returned, by the officer who levied the same, into the office of the clerk of the county court, satisfied, in the manner aforesaid.” To this plea there was a demurrer; and the case was reserved for the advice of all the Judges. contended, 1. That if an imprisoned debtor is discharged, by law, or his own act; as if he swears out, or is declared an insolvent or bankrupt; it is a satisfaction as it respects his body only. 2. That the commitment of the body of one person in execution, does not discharge any other person liable; nothing but actual payment being sufficient to discharge the latter. Macdonald v. Bovington, 4 Term Rep. 825. Nadin v. Battie & al. 5 East 147. Lyman v. Lyman & al. 11 Mass. Rep. 317. contended, That the creditor had a right to proceed either against the sheriff, or his deputy; but having made his election to proceed against one, and the cause of action having passed in rem judicatam, he is precluded from resorting to the other. He referred to, and commented on, Hayling v. Mullhall, 2 Bla. Rep. 1235. Bird v. Randall, 3 Burr. 1345. Kitchen & al. v. Campbell, 3 Wils. 304. Curtis v. Hurlburt, 2 Conn. Rep. 309.