Rogers v. May , 25 Ga. 463 ( 1858 )

By the Court.

Benning, J.

delivering the opinion.

Ought the rule nisi against the Sheriff, to have been made absol ute ?

It ought not to have been, if the escape was a negligent one. This is not disputed. The Court below considered the escape to have been, not a negligent, but a voluntary, one.

If we go by what is said, and, perhaps, what is decided, in Colley vs. Morgan (5 Ga. 185,) we must say, that the escape was no more than a negligent one. And we incline to think, that it was no more than a negligent one. The reason why the Sheriff let the defendant go at large, was, not that he wished him to be at large, but, that he felt himself constrained by the law, (mistaken though he might be,) to let him go ■at large — that law which he had to interpret for himself.

Would such an escape as this, amount even by the common law, to a satisfaction of the debt ? Hardly.

No case was cited in which, an escape in such a case as this, was held to be voluntary.

But say that this escape was voluntary, does it follow that the rule should have been made absolute?

The reason why a voluntary escape subjected the Sheriff, •by the common law, so absolutely to the payment of the debt, was, that by a voluntary escape, the ca. sa. became satisfied, or, at least}functus officio, so that the Sheriff could not re-arrest the defendant under it. Watson Shff. 141.

But the common law in this respect, has been changed by our statutes.

An Act of 1811 says, that both the fi. fa. and the ca. sa. * shall be of full force until satisfied, without being obliged to be renewed on the Court roll from year to year.” Cobb. Dig. 510.

An Act of 1843, says, that “ in any case where a debtor has been arrested under an execution against the body, and is afterwards discharged from such imprisonment, either by the authority of the plaintiff or otherwise, without the debt being paid, that such arrest and discharge shall not operate as a satisfaction of the debt, but the debtor’s property shall be liable to the judgment as though no arrest had been made.” Id. 515.

This repealed the common law rule which says, that a liberation of the arrested debtor shall be a satisfaction of the c,a. sa.

And the effect of it in the present case, was, to prevent the ■ca. sa. from being “ satisfied” by the act of the Sheriff in letting the defendant go at large on receiving from him the first bond.

The ca. sa. thus being prevented from being “ satisfied,”' by this act of the Sheriff, the statute of 1811, aforesaid, came in, and said, that the ca. sa. should be “of full force until satisfied.” And if the ca. sa. was still of force after this act, then the Sheriff had the right to re-arrest under it.

Is it true, that the latter words aforesaid, of the statute of 1843, would, if they were all, authorize an implication, that satisfaction was to be sought for only out of the debtor’s property? But those words are not all; there are the words of the statute of 1811, which are, that the ca. sa. “ shall be of full force until satisfied;” and we are not allowed to make a statute by implication repugnant to another statute, if there is not some great necessity for doing so. There is no such necessity here.

These things being so, we think, that the Sheriff had the right to make the second arrest, and to take the second bond; and, that as he acted throughout in good faith, and under legal advice, and, as no Term of the Court was lost by his mistake, the rule against him should not have been made absolute.

Judgment reversed.