4 Conn. 387 | Conn. | 1822
It is unquestionably clear, that the plaintiff might have instituted a suit, either against the sheriff, or his deputy, for the default complained of; and that nothing short of satisfaction made by one, would annihilate the remedy against the other. Although the causes of action are not precisely identical; yet the sheriff is subjected equally with his deputy to a responsibility for his official neglect or misconduct. The relation between them, in point of effect, produces the same consequences, as that between joint and several promisers, or joint trespassers: the judgment recovered against one, does not extinguish the right of action against
The taking out execution, and levying it on the body of Bissell, was no satisfaction of the plaintiff’s demand; but merely a gage for his debt, or a security for the original cause of action, until it should become productive. Blumfield's case, 5 Co. Rep. 87. Drake v. Mitchell & al. 3 East 251. 258. Macdonald v. Bovington, 4 Term Rep. 825. Sheehy v. Mandeville & al. 6 Cranch 265. The principle of transit in rem judicatam, has relation only to the positive cause of action, on which judgment is rendered; and operates as a change of remedy; but it is still merely a security, and effectuates no extinguishment of any collateral concurrent remedy, which the party may have. Drake v. Mitchell & al. Sheldon v. Kibbe, ubi sup. Notwithstanding the imprisonment of Bissell, until payment or a discharge of the execution, the cause of action against the sheriff, exists unimpaired; and his liability to suit is the same, as if no action had been instituted.
Plea insufficient.
