CONSTITUTIONAL COURT OF SOUTH-CAROLINA, NOVEMBER TERM, 1822-COLUMBIA The court has, at common law, the power to order mutual judgments to be set off against each other; but a person should avail himself of the earliest opportunity to make such application, and not to delay before the interest of third persons have become involved. Where the plaintiffs, under particular circumstances, took the defendant with a ca. sa. the court refused his motion to set off their mutual judgments. TRIED before Mr. Justice Gantt, Camden, Fall Term, 1822. James Williams, the plaintiff in this motion, had obtained a judgment against Barwell Evans for one hun dred and eighty-eight dollars; subsequent thereto, Barwell Evans obtained a judgment against the said James Williams, for the sum of two hundred and forty dollars, in an action of Trover. Williams, instead of moving to have his judgment set off against the larger judgment which had been recovered against him, issued a capias ad satisfaciendum against Evans. After the ca. sa. wąs issed against him, he assigned his judgment to Colonel Nirm for a valuable consideration; Evans was taken on the ca. sa. and put into gaol, where he remained until he died. At the next succeeding cou.t, Williams moved to have his judgment set off against that obtained against him by Evans. The presiding Judge ordered the set off to be made. Mr. Justice Not delivered the opinion of the court : There is no doubt but that the court has the power to order mutual judgments to be set off against each other. This is a common low power, and is not derived from the act authorizing parties to set off mutual debts. Lord Kenyon says, it depends on the general jurisdiction of the court over the suitors in it, and is an equitable part of their jurisdiction, and has been frequently exercised, (Mitchell vs. Ofield, 4 Term Rep. 123. Montague On Set Of, 5, 6. 1 H. Blackstone, 217. 2 Sellon's Practice, 451.) If it constitute a part of the equitable jurisdiction of the court, it ought to be so exercised as to do equity, and not to sanction fraud, and a person who wishes to have the benefit of it ought to avail himself of the earliest opportunity to make his application, and not to delay until the interest of third persons have become involved. If the party in this case had made his application at the court when his judgment was obtained, it ought to have been granted. He had three methods of proceeding, one that which he is now endeavoring to pursue; another by fi. fa. against the goods of the defendant; and the third, by taking his body in execution. He chose the latter, and after having made his election, (and particularly under the circumstances of this case,) he ought to be bound by it; at least he can have no high claim to the assistance of this court to relieve him from the difficulty of his own voluntary creation. It is true a judgment is not a negotiable instrument, nevertheless an assignment conveys an equitable interest to the assignee, such as a court of law will notice and respect, in all cases of appeal to its discretion. (Norman vs. Crocker, 1 Bay, 246.) A bond is not negotiable, and yet this court would so far respect the assignee of one as not to prevent a judgment recovered upon it to be set off against one recovered against the obligee. The plaintiff by taking the body of the defendant, had voluntarily relinquished every other claim upon him, and the claim which he now has upon his property, is revived only by the accidental circumstance of his death.Suppose the assignee of this judgment had enforced an execution against Williams in the life time of Evans, and during the time he had his body in execution, could Williams have required that money while in the hands of the sheriff, to be paid over to him? Certainly not; because having taken the body in execution, he must have been. contented with it-he could not have a double satisfaction. A releasement of Evans from custody, would have been a release of the debt. He had a mild and easy method of enforcing the payment of his debt, if he had chosen to make use of it. Instead of which, he resorted to the most rigorous and unfeeling, known to the law; like another Shylock, he would have nothing short of his flesh, and having no longer the means of gratifying his vengeance, he now comes and asks this court to take from a humane and merciful creditor a vested right to satisfy a debt which he had it in his power to receive, and which he voluntarily relinquished to gratify a vindictive passion. The motion must be granted. Justices Richardson & Colcock, concurred. Levy & Me Willie, for the motion. J. C. Carter, contra. JOHN W. WILKINS VS. AINSLEY HALL and WILLIAM HALL. An action of Trespass for false imprisonment under a ca, sa. can not be supported as long as the execution on its face, remains unsatisfied, (a) or even where there is but cost due. THIS was an action of trespass for false imprisonment, in maliciously causing the plaintiff to be arrested on a ca. sa. The dendants had obtained a judgment in the Common Pleas, against the plaintiff in this action, and subsequently, about February, 1821, the defendant, A. Hell, entered into an agreement with the plaintiff, by which, he was to allow him one and two years to pay the money. The consideration for this arrangement, was that Mr. Barrell, who had purchased a house and lot of Wilkins, in Columbia, sold at sheriffs sale, at $6.100, had relinquished his bargain in favour of the defendant, and it was agreed that the defendant should hold it as security, as well for the price paid, as for the debt due by the plaintiff to the defendant. The plaintiff was to have two years to pay the money, in equal annual instalments, and if it became necessary to se: the house and lot, and it should bring a larger sum, the surplus was to be settled on the plaintiffs wife, &c. A written agreement was prepared and tendered to the defendant, which he refused to sign, as some difference took place between the parties about the terms of it, and the defendant, Wm. Hall, in the absence of A. Hall, and so far as appeared from the evidence, without his knowledge or consent, directed a ca. sa. to be issued against the plaintiff, on which he was arrested by the sheriff, on the 17th of May following, and was confined to the prison bounds, until the 23rd of June, when he was discharged by an order from the Court of Equity, growing out of a bill for an injunction to stay proceedings at law. The sheriff, who made the arrest, stated that he never laid his hands on the plaintiff, at the time of the ar rest; that he met him in the street and informed him that he had the ca. sa. and he requested permission to go in pursuit of a friend to be his security, to keep the prison bounds; that he came shortly after to his office, and with his friend, entered into the usual bond, and never was within the prison walls. A. Hall returned home before the plaintiff was discharged from the prison bounds, but it did not appear that he took any part in the transaction. When the plaintiff closed his evidence, a motion was made for a nonsuit on the following grounds: 1st. That the action of trespass would not lie, in as much as no actual force on the person of the plaintiff had been used in making the arrest. 2nd. That the arrest was justifiable, as the costs were unpaid, and were not nor could be included in the agreement to give time for payment of the judgment. 3rd. That the plaintiffs judgment being unsatisfied and in full force, gave him a legal right to arrest the defendant on ca. sa. notwithstanding the supposed agreement to give time for payment, and if the violation of good faith as respected the agreement, was the foundation of an action, the remedy was by action on the case, and not trespass vi et armis. The court was of opinion with the defendant on the two last grounds, and non-suited the plaintiff. This was a motion to set aside the non-suit. Mr. Justice Nott delivered the opinion of the court: It might be sufficient in this case to say, that the costs being due, would protect the defendants from an action. of false imprisonment for causing the plaintiff to be arrested on the ca. sa.-but they stand on much stronger ground. The whole debt remained unsatisfied. Some stipulation had been proposed between the parties, by which it was agreed that the execution should be stayed; but it was a mere secret contract without any consideration that we can see, and the precise terms of which we do not know. It appears not to have been closed, because the parties differed about the terms of it-it certainly could not operate as a discharge of the execution. If the defendants had been guilty of a breach of faith, or of a breach of |