Peter Vivian Daniel

“ On principle it would be strange, indeed, if that policy of law and equity, and of all society which sets its face against fraud, should give way before the so-called policy here invoked, which amounts to nothing at all since arrest for debt has been abolished, and which never did amount to more than a train of unfortunate decisions, which, if they could be recalled, would never be made again.
It is also pretended by the defendant, that to relieve the plaintiff would be to favor a stale claim. ”

“ But the authorities have not stopped short at a mere technical restraint upon the creditor who may seek to repeat the arrest of the debtor whom he once had in confinement; they have gone the length of declaring, that if a person taken on a capias ad respondendum was discharged, the plaintiff had no farther remedy, because he had determined the choice by this kind of execution, which, affecting a man's liberty, is esteemed the highest and most rigid in the law. ”

“ Equity may be invoked to aid in the completion of a just but imperfect legal title, or to prevent the successful assertion of an unconscientious and incomplete legal advantage; but to abrogate or to assail a perfect and independent legal right, it can have no pretension. In all such instances, equity must follow, or in other words, be subordinate to the law. ”

“ That wherever there exists at law a complete and adequate power, either for the prosecution of a right or the redressing of a wrong, courts of equity, with the exception of a few cases of concurrent authority, have no jurisdiction or power to act. ”

“ The creditor, by issuing a capias ad satisfaciendum, chooses the body of the debtor in preference to his lands or goods, as the source of his satisfaction. By making an arrest, he secures to himself the satisfaction he has chosen, and is thereby estopped from resorting to any other mode of execution. As long as he holds the body in custody, he is in the possession and receipt of a continuing satisfaction ”

“ That wherever the rights or the situation of parties are clearly defined and established by law, equity has no power to change or unsettle those rights or that situation, but in all such instances the maxim equitas sequiter legem is strictly applicable. ”

“ Defendant moved for his discharge, but the plaintiff alleging that the commission had been fraudulently procured to induce him to discharge the defendant from the original ca. sa., the court refused the motion, referring it to a jury to try the question of fraud, holding that if there were fraud in defendant's procurement of discharge from the first ca. sa., the second was well issued.
Best, C. J., says: 'If there has been no fraud in the transaction, I am of opinion the defendant is entitled to his discharge; if there has been fraud, we are all of opinion he is not so entitled. ”

“ To this bill the appellee (the defendant in the Circuit Court) demurred, assigning, for causes of demurrer, that if the taking into custody of the body of the defendant under the capias ad satisfaciendum was a legal discharge of the alleged debt, the complainants are not relievable in equity from the effect thereof for or by reason of any act, matter, or thing in the bill alleged; and if the taking into custody was not such a legal discharge, then the complainants have full, adequate, and complete remedy at law ”

“ Where the judgment is to be satisfied by instalments, and execution is to issue upon non-payment of any of the instalments, it is held that a release from imprisonment upon one instalment with the plaintiff's consent, will not affect the remedy, or bar the execution upon a second instalment. ”

“ Like the case of one who, having given his receipt in full, but without value, to a debtor, in order that he might settle with a third person, is turned upon by the debtor, and told that his debt is paid, and here is the receipt for it. ”

“ The bill alleges that by the force and effect of the agreement in writing and of the proceedings in pursuance thereof, the appellee obtained no farther or other right or advantage, than a present discharge from close custody, and the judgment of a court of competent jurisdiction that he was then possessed of no means, whether in or out of the said marriage settlement, wherewith to satisfy the judgment of the appellants. ”

“ It only remains, in the third place, to examine some particular cases, which are considered by the plaintiffs as exceptions to the general rule, but which in reality go far to illustrate and strengthen it.
1. Cases of escape. By the oldest authorities an escape was considered as effectual a discharge of the debt as a release, and Blumfield's case is the first decision to the contrary. ”

“ The above cases not only sustain the position to which they are cited, but they also prove that it is not merely a sharp point of law, adhered to out of respect for ancient authority, but that it has been treated at all times, both by judges and chancellors, as a well-founded principle, to which a controlling force should be given, in every case where it is either directly or collaterally involved. ”

“ Like the case of an obligee who, having released one of two co-obligors, for the mutual purposes of obligee and obligors, and, with the agreement that the discharge should be without prejudice as to the remaining obligor, is informed by him, after the object of the discharge has been accomplished and the advantages from it attained, that he does not mean to hold himself liable after the release of his co-obligor. ”

“ Jackson, governed all subsequent cases of death in execution, until parliament interfered, and, by the statute of 21 Jac. 1, c. 24, gave the creditor a further remedy against the estate of the deceased. ”

“ The arrest of a member of parliament has, from the earliest times, been hold irregular; and it was occasionally doubted whether such an arrest, followed, as it necessarily was, by a discharge, either upon writ of privilege, or without it, did not operate, like a release by consent, as a total discharge of the debt. 1 Hatsell, 48; May's Practice of Parliament, 107, 113, 114; 2 Man. & Gr. 437, 471; 1 Cr. M. & R. 525; 5 Tyrrwhitt, 147; 10 Ad. & Ellis, 225; 1 Ad. & El. N. S. 525; 2 Gale & Dav. 473; Godbolt, 327.
4. Cases of discharge from imprisonment by the lord's act, &c. ”

“ Lamb, was decided. Croke Jac. 136. Yet, in the last-mentioned case, the defendant having died in execution, the court held, that the plaintiff had no further remedy. In Foster v. Jackson, (Hobart, 52, 57,) where the same point arose, Hobart, C. J., makes the same decision, and, in the course of an elaborate opinion, approves the cases of Blumfield, and Jones v. Williams, but condemns the dictum which accompanies them. Since then, in Sir Edward Coke's case, and in Cave v. ”