14 Mass. 237 | Mass. | 1817
delivered the opinion of the Court. The creditor has an election to attach the property or the body of the debtor on mesne process, as well to secure his debt as to compel the debtor to answer; and by law the lien created by the attachment continues for thirty days after judgment. During that time the creditor may deliberate and determine what future process will be most for his advantage. If he sues an execution, he may direct it to be levied upon his body, if the debtor does not produce estate to the creditor’s acceptance. He is not obliged to take the body, or property which was attached on the original writ. If he should omit to do it, the only consequence would be, that he would lose the lien created by the attachment. Thus, if, within the thirty days, he should find it more for his benefit to take property than the body which was originally arrested, he may waive the one and take the other. So, if he attached property on mesne process, and should afterwards think the title not good, or that it would be better to compel the debtor to raise money from the property than to take it himself, he may waive his attachment, and use the execution as a copias ad satisfaciendum instead of a levari facias. These remarks tend to illustrate the position, that a creditor is not compellable to pursue, after judgment, the remedy indicated by his mesne process
In the case at bar, the defendant contends that the plain tiff, having a right to an execution, is obliged to * resort to it, and cannot maintain an action of debt within the thirty days after the judgment, because a new judgment would only give a right to an execution.
It may happen that the action of debt may be brought for the purpose of oppression only, and not for the better recovery of the money due. In such case, all the officers concerned would merit censure. But the case at bar is, by the demurrer of the defendant, confessed to be not of that iniquitous kind, but one brought to secure the debt, and not wantonly; and we do not perceive that there is any legal objection to it.
Replication adjudged good
Com. Dig., Debt, A, 2.